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Mukat Behari Lal Vs. Shiv Charan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Election Petition No. 2 of 1977
Judge
Reported in1978(11)WLN161
AppellantMukat Behari Lal
RespondentShiv Charan Singh and ors.
DispositionPetition dismissed
Excerpt:
.....the election petition taken as a whole.;(c) representation of people act, 1951 - section 123(b) - corrupt practice--averment gives names, and alleges their withdrawal on being bribed--held, averment amounts to allegation of corrupt practice within meaning of section 123(b).;the words 'in this way respondent no. 1 was successful in getting the above named goojar candidates except samandar singh withdrawn from the contest,' appearing in para 12(b) of the election petition make the position unmistakably dear that the above named withdrawn candidate? except samandar singh had been bribed and besides that an emotional appeal on the ground of caste and community was also made to them by the respondent no 1 for withdrawing their candidature and in pursuance thereto they withdrew from the..........singh advocate, (iii) vaney singh, (iv) chhatra bhan singh, (v) kr. karan singh, and (vi) raghuvir singh. para 12(b) of the petition reads as follows:12(b) - that the respondent no. i apprehending that he cannot get all the gujar votes even on the basis of appeal to caste and community, if other gujar candidates remained in the field, and therefore, he persuaded the gujar candidates i.e. sarvashri (i) jagan singh khadayya, (ii) jagan singh advocate, (iii) vanay singh, advocate, (vi) chhatra bhan singh, (v) kr. karan singh, (vi) raghuvir singh, and (vii) samander singh to withdraw from the election from bayana assembly constituency he promised to pay them the amount equivalent to the expenditure incurred by them as a gratification to withdraw their candidature from contest. in addition to.....
Judgment:

M.L. Shrimal, J.

1. In the General Elections of 1977, 20 persons filed nomination papers from the Bayana constituency for election to the Rajasthan Legislative Assembly, all of which were found on scrutiny to be valid. Among these persons were the petitioner Mukat Behari Lal, respondent No. 1 Shiv Charan Singh respondents No 2 to 7 and also 12 others. Shri Shiv Gharan Singh (respondent No. 1), secured 16928 votes and was declared duly elected from the aforesaid constituency by the Returring Officer (respondent No. 8). Petitioner Mukat Behari Lal secured 16090 votes. The rest of the persons filing nomination papers seemed votes, the total number of which remained confined to 50423 votes.

2. On July 28, 1977 the petitioner filed the present election petition under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') calling in question the election of the returned candidate and for declaration that his election be held null and void and for holding that the petitioner has been duly elected candidate from the Bayana Assembly Constituency. It was in the end, prayed that the respondent No. 1 be declared disqualified for membership of the legislature for a period of six years for committing corrupt practice.

3. The respondent No. 1 after service of summons entered appearance He instead of filing a written statement made an application on October 10, 1977 challenging the maintainability of the election petition and urging that the election petition should be dismissed summarily under Section 86(1) of the Act for not complying with the provisions of Sections 81 and 82(b) of the Act.

4. To the above application a reply was filed by the petitioner on October 26, 1977. A re-joinder on behalf of the respondent No 1 was also filed on December 31, 1977. On November 30, 1977, learned Counsel for the respondent No. 1 submitted that though the application, dated October 10, 1977, challenging the maintainability of the election petition was based on three grounds, out of which one related purely to a question of law and the rest dealt with mixed questions of law and fact which he did not want to press at that stage. He wanted preliminary decision on the point that as there were allegations of corrupt practices against the candidates, who have not been joined as respondents to the petition, the election petit ion was liable to be dismissed for non-compliance with the provisions of Section 82(b) of the Act.

5. Learned Counsel for the petitioner urged that the preliminary objection was not entertainable. The same, according to him, could be raised in a written statement. There after the Court could proceed with the settlement of issues and, if necessary, could decide the preliminary issues In the course of arguments the petitioner made a supplementary application, on December 6, 1977, mentioning therein the summary of the arguments which he wanted to advance in support of the reply, dated October 26, 1977, filed by him to the application of the respondent No 1 dated October 10, 1977.

6. From the rival contentions raised by the parties, the following basic questions emerge for determination at this stage:

1. Whether a preliminary objection regarding non-compliance with Section 82(b) of the Act should be entertained and decided at this initial stage or should be relegated to the future stage when the written statements have been filed and issues have been framed?

2. Whether the election petition is liable to be dismissed summarily under Section 86(1) of the Act on account of non-joinder of Saivshrijagan Singh Khadayya, Jagan Singh Advocate, Vaney Singh Advocate, Chhatra Bhan Singh, Kr. Karan Singh and Raghuvir Singh as respondents to the election petition under Section 82(b) of the Act?

7. As regards point No. 1 learned Counsel for the petitioner urges $hat fragmentary or piecemeal objections in installments should not be entertained at this stage. After written statements have been filed and when issues both of law and fact have been struck and then if the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only it, can try these issues first. In support of this contention learned Counsel for the petitioner placed reliance on Vidya Charan Shukla v. C.P. Tiwari : AIR1963MP356 .

8. I am unable to agree with the contention of counsel for the petitioner. The objection raised at this stage relates to tie effect of non-compliance with the provisions of Section 82(b) of the Act ' It is purely a question of law and is based en the allegations made in para 12(b) of the election petition. The decision of this objection depends upon the construction' of the allegations made in para 12(b) of the election petition. It does not require evidence for determination, Such a plea, can be raised at any time even before filing a written statement. In Shri Mohan Singh Oberoi v. Shri Shah Mohammed Umair and Ors. Doabia's Election Cases (1963) page 219 the Patna High Court; placing reliance on K. Kamraja Nadar v. Kunju Thevar and Ors. : [1959]1SCR583 while issuing directions to the Election Tribunal Patna observed as under:

Acting therefore, in exercise of our authority under Article 227 of 'the Constitution, we set aside the order of the Election Tribunal, Patna, dated 3rd September, 1962 & direct that the Election Tribunal should proceed to hear and decide the preliminary objection raised by the petitioner with regard to non compliance of Section 81 of the Representation of the People Act in the objection petition dated the 27th August, 1962, and thereafter proceed in accordance with law.

9. In Mohan Raj v. Surendra Kumar Taparia and Ors. , while dealing, with the effect of non-joinder of candidates against whom charges of, corrupt practice were made in the election petition, Hon'ble Jagat Narayan as he then was, observed in para 8 as under:

Under Section 86(1) it is the duty of the Court to dismiss the petition if it does not comply with the provisions of Section 81 or 82 or 117. The petition is put up before the Court to see if there is any defect of the above nature and it is only if the Court is satisfied that the petition does not suffer from any Such defect that service is effected on the respondents. Even if the Court omits to notice any such defect at the stage it is bound to dismiss the petition under Section 86(1) when ever it is brought to its notice that the petition 'as filed' originally suffered from any such defect.

The petitioner in that case went up in, appeal, before Hon'ble the Supreme Court but the same was dismissed on August, 12, 1968, Reference in this connection may, be made to Mahanraj v. Surendra Kumar Tapria and Ors. : [1969]1SCR630 .

10. The provisions pf Section 86(1) read with Section 82(b) of the Act are in the nature of a mandate to the Court which is bound to dismiss an. election petition whenever it comes to, its notice whether on its own motion or on the motion of the party concerned that there has been a non-compliance with the imperatives of Section 82(b) of the Act. The provisions of Section 86(1) of the Act are almost analogous to those contained in Section 3(1) of the Limitation Act, 1963. They are reproduced hereunder for ready inference:

86. Trial of election '3. Bar of limitation.-

petitions. - (1) The High Subject to the provisions

Court shall dismiss an contained in Section 4 to

election petition which 34 (inclusive), every suit

does not comply with the instituted, appeal preferred

provisions of Sections 81 and application made after

or Section 82 or Section 117. the prescribed period shall

be dismissed, although

limitation has not been

set up as a defence.

A plea of limitation which can be substantiated without any evidence can be allowed to be taken at any stage of the proceedings. On the parity of reasoning it can be said that the objection regarding non compliance with the provisions of Section 82(b) of the Act can also be taken at any stage of the proceedings, may be by way of an application; (1) before the written statement is filed; or (ii) by taking a plea in the written statement; or (iii) by making a separate application after a written statement has been filed.

11 In Udhav Singh v. Madhav Rao Scindia : [1976]2SCR246 a similar question regarding interpretation of Section 82(b) and Section 86 of the Act, came up for consideration before Hon'ble the Supreme Court In that case the objection regarding maintainability of the election petition on the ground of noncompliance with the requirement of Section 82(b) of the Act was raised by an application, dated August 8, 1972, made after a year and a half after the filing of the written statement. Their Lordships of the Supreme Court, while upholding the dismissal of the election petition, observed in para 20 of the judgment as under:

The respondent cannot by consent, express or tacit, waive these provisions or condone a non compliance with the imperative of Section 82(b). Even inaction, laches or delay on the part of the respondent in pointing out the lethal defect of non-joinder cannot relieve the Court of the statutory obligation cast on it by Section 86. As soon as the non compliance with 82(b) comes or is brought to the notice of the court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstinted obedience to the command of Section 86.

12. For the foregoing reasons, I hold that the question whether or not for the alleged non-compliance with the provisions of Section 81 of the Act the petition is maintainable has first to be determined If the petitioner fails to comply with the mandatory provisions of the statute irrespective of whether or not a corrupt practice was committed by the respondent No. 1, the petition must stand dismissed in unstinted obedience to the command of Section 86(1).

13. Now, I proceed to deal with the second question, which is of vital importance. Mr. Lodha appearing for the petitioner in reply to the objection raised by the respondent No. 1 urged that in order to attract the provisions of Section 82(b) read with Section 86(1) of the Act the allegations in the election petition must constitute a corrupt practice. Mere suggestion of a corrupt practice therein cannot form the basis for dismissal of the petition on the ground of non-joinder of necessary parties. The allegations in para 12(b) of the election petition, cannot according to Mr. Lodha be termed to be the allegations of corrupt practice within the meaning of Section 123B(a) of the Act, as they are bereft of material facts and do not constitute a complete charge. The mere use of the word 'bribed' in para 12(b) of the election petition does not disclose the full picture of the corrupt practice. Merely citing caption of the section cannot be said to have revealed a cause of action pertaining to that particular corrupt practice. Unless the type and form of the bribe and the manner in which the person was bribed are alleged, a triable issue cannot be said to have been raised. The petition is silent as regard the type of the bribe accepted by each of the withdrawn candidate. The allegations made in the petition are so elastic that they can be used for establishing multitude of charges. In substance the petitioner has merely quoted the caption of Section 123 of the Act and has failed to state the material facts to bring out the charge sought to be levelled. No triable issue can be struck on the basis of the a legations, mentioned in para 12(b) of the petition. One cannot read into these allegations and clear and categorical statement of a charge under Section 123B of the Act. The allegations, according to Mr. Lodha, do not bring out all the ingredients of the alleged corrupt practice. It cannot, therefore, be said that the petition is defective and is liable to be dismissed for non-joinder of parties, as required by Section 82(b) of the Act. In support of the above contention, reliance his been placed on Mohan Singh v. Bhanwarlal and Ors. AIR 1964 SC 1936, Sampat v. Balakrishana etc. v. George Fernandes and Ors. Etc. AIR 1969 SC, Hardwarilal v. Kanwal Singh : [1972]2SCR742 & Raj Narain v. Smt. Indira Nehru Gandhi and Anr. : [1972]3SCR841 Learned Counsel for the petitioner further urged that the facts mentioned in para 12(b) of the election petition lack material facts. Simply quoting the language of the section do not constitute a charge of corrupt practice. First part of para 12(b) of the election petition should be road disjunctively. According to learned Counsel for the petitioner, the use of the word 'bribed' in the latter part of para 12(b) of the election petition was not rightly made. It related to making of communal appeal and bringing pressure on that account, but it certainly did not pertain to the payment of any bribe to any person who withdrew his candidature at the instance of the respondent No. 1.

14. Mr. G.K. Garg appearing for the respondent No. 1 vehemently argued that all the material facts as distinguished from material particulars necessary to constitute a completed charge under Session 123B of the Act against the withdrawn candidates, named above, have been asserted. The correct way of considering para 12(b) of the election petition is to read it as a whole along with other arguments in the petition; The nature of the bribe has also been categorically mentioned as cash money equivalent to the expenditure incurred by them. Learned Counsel then urges that the petitioner cannot take advantage of his own mistake and find shelter against non-mentioning of full particulars. In support of the above contention he placed reliance on Udahav Singh v. Madhav Rao Scindia : [1976]2SCR246 , Mohan Raj v. Surendra Kumar Taparia and Ors. (supra) and K.R. Saraswati Amma v. V.C. Thankappan Pillay : AIR1977Ker156 .

15. I have heard learned Counsel for the parties and have examined the pleadings with meticulous care in the light of the rival contentions raised before me. lam not required to consider in detail all the authorities cited by the parties before me on the point of distinction between two words 'material facts' and 'material particulars' because their Lordships of the Supreme Court, in Udhav Singh v. Madhav Rao Sindia : [1976]2SCR246 , after considering almost all the cases on the point have finally settled the law. Their Lordships, after quoting the relevant provisions of Section 83 of the Act, observed in paras 37, 38, 39 and 40 of the judgment as under:

37. Like the Code of Civil Procedure, this section also envisages a distinction between 'material facts and material particulars' Clause (a) of Sub-section (1) corresponds to Order 6, Rule 2, while Clause (b) is analogous to Order 6, Rules 4 and 6 of the Code. The distinction between 'material facts' and 'material particulars' is important because different consequences may few from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material/act leading to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule, 16, Code of Civil Procedure. If the petition is v based solely on, those allegations which suffer from lack of material facts, the petition is liable to, be summarily rejected for want of a; cause of action. In the case of a petition suffering from a deficiency of material particulate, the court has a discretion to i allow the petitioner to supply the required particulars, even after the expiry of limitation.

38. All the primary facts which must be proved at the trial by a party to establish the existence of a cause, of action or his defence, are 'material facts'. In the context of a charge of 'corrupt practice' 'material facts' would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged which the petitioner, is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground' relied upon and the special circumstances of the case. In short, all these facts which are essential to clothe the petitioner with a complete cause of action, are 'material facts' which must be pleaded, and failure, to plead, even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).

39. 'Particulars', on the other hand, are 'the details of the case set up by the party.' Material particulars' within the contemplation of Clause (b) of action 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts, already pleaded in the petition in compliance Wh the requirements of Clause (a) 'Particulars' serve the purpose of finishing, touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.

40. The distinction between 'material facts' and 'material particulars' was pointed out by this Court in several cases, three of which have been cited at the bar. It is hot necessary to refer to ail of them. It will be sufficient to close the discussion by extracting what A.N. Ray, J. (as he then was) said on this point in Hardwari Lal's case : [1972]2SCR742 .

It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material' facts to clothe the petitioner with a complete cause of action & to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained r procured, of a tempted to obtain or procure assistance are extracting words from the statute which will have o meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words 'any assistance' were full statement of material fact. The submission is fallacious fir the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer Material facts are facts which if established would give the petitioner the relief asked for If the respondent had not appeared, could the court hive 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.

16. Keeping in view the criteria for distinguishing material facts from material particulars I will turn to the averments in para 12(b) of the election petition and see whether the allegation cover all the material facts constituting a complete charge of corrupt practice within the meaning of Section 123(B) of the Act against Sarvshri (i) Jagan Singh Khadayya, (ii) Jagan Singh Advocate, (iii) Vaney Singh, (iv) Chhatra Bhan Singh, (v) Kr. Karan Singh, and (vi) Raghuvir Singh. Para 12(b) of the petition reads as follows:

12(b) - That the Respondent No. I apprehending that he cannot get all the Gujar votes even on the basis of appeal to caste and community, if other Gujar candidates remained in the field, and therefore, he persuaded the Gujar candidates i.e. Sarvashri (i) Jagan Singh Khadayya, (ii) Jagan Singh Advocate, (iii) Vanay Singh, Advocate, (vi) Chhatra Bhan Singh, (v) Kr. Karan Singh, (vi) Raghuvir Singh, and (vii) Samander Singh to withdraw from the election from Bayana Assembly Constituency He promised to pay them the amount equivalent to the expenditure incurred by them as a gratification to withdraw their candidature from contest. In addition to the above, the respondent also appealed to them in the name of caste and community that they are all Gujars and if they do not withdraw their candidature, the Gujar party will lose the seat and he would not be able to get success. With this end in view, respondent No. 1 Shri Shiv Charan Singh, himself assisted by his workers organised a meeting by the name of Goojar Sabha on 21st day of May, 1977 at the place known as Bagichi of Baldeva Thakur at about 10 A.M. In this Gujar Sabha, respondent No; 1 himself and assisted by his workers bribed, induced and pressed the Gujar candidates to withdraw and appealed emotionally on the ground of Gujar community, race and caste. In this way respondent No. 1 was successful in getting the above named Gujar candidates except Samandar Singh, withdrawn from the contest Shri Samandar Singh in this meeting refused to be persuaded by communal appeal On this respondent Shiv Charansingh threatened him that he would have to face expulsion from Gujar community and caste if not accepting the communal appeal and standing against the interest of the community. He even threatened him of serious consequences of being shot if he dared to contest against the community interest. On account of this Samandar Singh also has withdrawn from contest. In this meeting amongst others Shri Krishna Murari Sharma, Bhudao Mittal, Ram Babu Brahman, Shri Bedilal Advocate, Shri Hazari Lal Advocate, Shri Om Prakash Gupta Government Contactor, all residents of Bayana, Munshi Singh Gujar of Kharka and Safeda Gujar of Ushchain were present.

17. There is no dispute between the parties that Sarvshri Jagan Singh Khadayya, Jagan Singh Advocate, Vaney Singh Advocate, Chhatra Bhan Singh, Kr. Karan Singh and Raghuvir Singh were candidates, who had withdrawn their canditure for election from this constituency under Section 37 of the Act. There is thus no uncertainty that they were 'candidates' within the meaning of Sections 79(b) and 82(b) of the Act. If, therefore, the allegations made in para 12(b) of the petition amount to a charge of corrupt practice under Section 123B of the Act, their non-joinder as respondents goes to the very root of the case and is fatal to the election petition.

18. The material part of Section 82 of the Act reads as under;

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

(a) ....

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

I do not consider it to be fair to read para 12(b) of the election petition in part, as the learned Counsel for the petitioner wants me to do. It is not possible to cut out a sentence or a few sentences out of context & read them in isolation Interpretation clauses should not and cannot be used to give new meaning to plain words, unless they are ambiguous. In other words, the well known principles of interpretation are (a) firstly a document must be construed as a whole, (b) secondly, it has to be construed as not to reduce what was meant by it to a patent absurdity. The election petition is required to be read as a whole without addition, alteration or subtraction. The intention of the petitioner is to be gathered primarily from the tenor & terms of the election petition taken as a whole A just reading of para 12(b) of the petition, quoted above, admits of no doubt that the respondent No. 1 offered to Sarvshri Jagan Singh Khadayya Jagan Singh Advocate, Vaney Singh Advocate, Chhatra Bhan Singh, Kr Karan Singh, Raghuvir Singh and Samandar Singh the amount equivalent to the expenditure incurred by each one of them as a gratification to withdraw their candidature from contest from Bayana Assembly Constituency. Thereafter, in the meeting held on May 21, 1977 at the Bagichi of Baldava Thakur at Bayana the aforementioned candidates except Samandar Singh, were bribed as a result of which the above named candidates, except Samandar Singh withdrew their candidature from the contest. The allegation regarding making of emotional appeal on the ground of caste and community is in addition to the one relating to the corrupt practice under Section 123B of the Act. The words 'In this way respondent No. 1 was successful in getting the above named Gujar candidates except Samandar Singh withdrawn from the contest,' appearing in para 12(b) of the election petition make the position unmistakably clear that the above named withdrawn candidates except Samandar Singh had been bribed & besides that an emotional appeal on the ground of caste & community was also made to them by the respondent No. 1 for withdrawing their candidature and in pursuance thereto they withdrew from the contest. In this view of the matter there can be no manner of doubt that the averment in para 12(b) of the election petition amounts to allegations of corrupt practice within the meaning of Section 123B of the Act.

19. Once as allegation of corrupt practice is made against the candidate or candidates, who has or have withdrawn, Sub-section (b) of Section 82 read with Section 86(1) of the Act applies and the failure to implead the persons charged with corrupt practice is Fatal to the maintainability of the election petition.

20. The election petition is accordingly dismissed with costs of Rs. 750/- to be payable by the petitioner to Shri Ghaian Singh (respondent No. 1). The office will communicate the substance of this decision to the Election Commission and to the Speaker of the Rajasthan Legislative Assembly. It shall also forward an authenticated copy of this decision as soon as it is ready to the Election Commission in accordance with the provisions contained in Section 103 of the Representation of the People Act, 1951,


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