TMI Blog1987 (5) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... 1951 (hereinafter referred to as the Act) questioning the validity of the election of the respondent on a number of grounds, including the allegations of corrupt practice of undue influence, hiring and procuring of vehicles for carrying voters and obtaining the assistance of Government servants and incurring expenses at the election in excess of the permissible limit. The High Court issued notice to the respondent who appeared before it and made an application under Order VI Rule 16 of the Code of Civil Procedure for striking out the pleadings contained therein as the same were vague, general, unnecessary, frivolous and vexatious which did not disclose any cause of action. Respondent further prayed that the election petition be rejected under Order VII Rule 11 of the Civil Procedure Code read with Section 87 of the Act. A learned Single Judge of the High Court before whom the preliminary objections were raised caused service of the copy of the objections on the appellant who was appearing in person and granted time to him to submit his reply. The appellant, however, did not submit any reply to the preliminary objections and in spite of date being fixed for hearing arguments i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it. Lord Viscount Simon in his speech in the House of Lords in Sun Life Assurance Company of Canada v. Jervis, [1944] AC 111 observed; 1 do not think that it would be a proper exercise of the Authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. It is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue. These observations are relevant in exercising the appellate jurisdiction of this Court. The main controversy raised in the present appeal regarding setting aside of the respondent s election has become stale and academic, but precious time of the apex Court was consumed in hearing the appeal at Length on account of the present state of law. Section 98 read with Section 99 indicates that once the machinery of the Act is moved by means of an election petition, charges of corrupt practice, if any, raised against the returned candidate must be investigated. On conclusion of the trial if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings and to plead later on the plea of limitation. Ways and means should be found to strike a balance in ascertaining the purity of election and at the same time in preventing waste of public time and money and keeping the sword of Damocles hanging on the head of returned candidate for an indefinite period of time. The appellant appeared in person and argued the ease vehemently for a number of days. He made three submissions: (i) The High Court had no jurisdiction to entertain preliminary objections under Order VI Rule 16 or to reject the election petition under Order VII Rule 11 of the Code of Civil Procedure before the respondent had filed his written statement to the petition. In rejecting the petition under Order VII Rule 11 the High Court deprived the appellant opportunity of amending the petition by supplying material facts and particulars. (ii) Allegations contained in various paragraphs of the election petition constituted corrupt practice which disclosed cause of action within the meaning of Section 100 of the Act. The High Court committed error in holding that the petition was defective on the premise that it did not disclose any triable issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11. In K. Kamaraja Nadar v. Kunju Thevar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court on the ground that the pleadings contained in the election petition even assuming to be true and correct did not disclose any cause of action for setting aside the election of the returned candidate. The precise question as raised by the appellant was considered at length by this Court in Azhar Hussain v. Rajiv Gandhi and this Court held that the High Court while dealing with the election petition has power to strike out pleadings under Order VI Rule 16 and to reject the election petition under Order VII Rule 11 if the petition does not disclose essential facts to clothe it with complete cause of action. Failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) and election petition could therefore be and must be dismissed if it suffers from any such vice. The Court repelled the submission that the power to reject an election petition summarily under the Code of Civil Procedure should not be exercised at the threshold. The Court observed as under: In substance the argument is that the Court must proceed with the trial, record the evidence, and only after the trial of the election petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same in regard to matters pertaining the elections. In Bhagwati Prasad Dixit Ghorawala v. Rajiv Gandhi , this Court again reiterated that in an election petition pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it should be rejected in limine. These authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not conform to the requirement of Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII Rule 11. A pleading if vague and general is embarrassing. If the allegations contained in the election petition even assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court held that the preliminary objections relating to non-maintainability of an election petition should not be allowed to be raised by mere applications without filing a complete written statement. We do not find any justification to uphold this view. As discussed earlier Order VI Rule 16 of Civil Procedure Code permits striking of pleadings at any stage of proceedings. It does not admit of any exception that the respondent must file written statement before the preliminary objections could be entertained. In view of this Court s decisions as discussed earlier the view taken by the Madhya Pradesh High Court in Vidya Charan Shukla s case is no longer a good law. The appellant s grievance that in entertaining the preliminary objections and rejecting the election petition under Order VII Rule 11 the High Court deprived the appellant s opportunity to amend the petition and to make good the deficiencies by supplying the necessary particulars and details of the corrupt practice alleged in the petition, is devoid of any merit. Firstly, the appellant was free to file amendment application, but at no stage he expressed any desire to make any amendment application nor he made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under Section 100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner. Now we would consider the various paragraphs of the election petition to determine as to whether the allegations contained therein disclosed any cause of action. The election, petition runs into 58 paragraphs containing allegations of various corrupt practices known to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraphs the election petitioner namely the appellant has seen a number of vehicles plying in the constituency carrying Congress (I) flags. These allegations merely show that a number of vehicles were plying with Congress (I) flags in the constituency which by itself do not constitute any corrupt practice. It appears that the appellant intended that the returned candidate had spent money over the plying of vehicles and thereby he exceeded the limit prescribed by Section 123(6) read with Section 77 of the Act. In the absence of requisite allegations in the aforesaid paragraphs the basic ingredients to make out a ground for challenging the election under Section 100 of the Act was totally lacking. These paragraphs therefore disclosed no cause of action. In paragraphs 20 and 21 the appellant stated that Smt. Indira Gandhi toured the constituency along with the respondent and in her speeches she appealed to the voters to vote for Rajiv Gandhi. We fail to appreciate how these allegations constitute any corrupt practice. It is always open to a candidate or his supporter to appeal to the electors to vote for a particular candidate for the development and progress of the area. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein do not amount to any corrupt practice, instead if at all these allegations relate to irregularities and illegalities alleged to have been committed on the polling day which would at best be relevant if there was further allegation that it materially affected the result of the election. Since respondent s term has already expired, and as his election cannot be set aside, these allegations do not survive and it is not necessary to consider them in detail. Similarly averments contained in paragraphs 3738 contain narration of facts which have no bearing on any corrupt practice. Allegations contained in paragraphs 39 to 49 relate to the appointment of counting agents. In substance the appellant has alleged that neither he nor his election agent had appointed any counting agents but a number of persons had acted as the appellant s counting agents in an unauthorised manner and complaints made by him were not considered and the Returning Officer failed to perform his duty. These allegations even if assumed to be true do not make out any case of commission of corrupt practice. Allegations contained in paragraphs 50, 51 and 53 (1)(F) of the election petition purport to state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses. Any voluntary expense incurred by a political party, well-wishers, sympathisers or association of persons does not fall within the mischief of Section 123(6) of the Act, instead only that expenditure which is incurred by the candidate himself or authorised by him is material for the purpose of Section 77. In Rananjaya Singh v. Baijnath Singh, [1955] 1 SCR 671 this Court pointed out that expenses must be incurred or authorised by the candidate or his election agent. In that case the Manager, the Assistant Manager, 20 Ziladars and their peons were alleged to have worked for the election of the returned candidate. This Court held that the employment of extra persons and the incurring or authorising of extra expenditure was not by the candidate or his election agent. It was further pointed out that persons who volunteer to work cannot be said to be employed or paid by the candidate or his election agent. In Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 Ray, C.J. observed Authorisation means acceptance of the responsibility. Authorisation must precede the expenditure. Authorisation means reimbursement by the candidate or election agent of the person who has been auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1 lays down that any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any association or body of persons or by any individual other than the candidate or his election agent, shall not be deemed to be incurred or authorised by the candidate or his election agent. The validity of the Amending Act was upheld by a Constitution Bench of this Court in Dr. P. Nalla Thampy Terah v. Union of India Ors., [1985] Supp. SCC 189. After the amendment of Section 77(1) any expenditure at the election by a political party, sympathisers or friends cannot be held to have been incurred by the candidate or his election agent unless it is shown that the money which they spent belonged to the candidate or his election agent or that he reimbursed the same. it is thus evident that unless the allegations are specific that the candidate or his election agent authorised the expenses before the money was actually spent and that the candidate or his election agent reimbursed or undertook to reimburse the same the necessary ingredient of corrupt practice would not be complete and it would provide no cause of action to plead corrupt practice. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Amethi Railway Station was being constructed and during the election its work was speeded up which persuaded the voters to cast their vote in favour of the returned candidate. There is no allegation that Rajiv Gandhi or his workers with his consent made any gift, offer or promise to any elector to vote or refrain from voting at an election. If some developmental activity was carried on in the constituency and if it was completed during the election period it could not amount to any gift or promise to the voters. It would be noticed that the allegations contained in sub-paragraph 53(1)(A) open with the qualification Respondent No. I (Rajiv Gandhi) tried to make gift to the voters, which means that attempt was made to make gift to the voters and not that it was actually done. It indicates that the appellant who made the allegations was himself not sure that any corrupt practice had been committed. Sub-paragraphs (A) and (C) of paragraph 53 (I) of the election petition alleged that Rajiv Gandhi and Smt. Indira Gandhi and their workers with the consent of Rajiv Gandhi and Smt. Indira Gandhi made promise through newspapers, pamphlets and speeches that voters should cast th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidates and their supporters must naturally be allowed to canvass support by all legitimate and legal means. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does amount to interference with the exercise of an electoral right is tyranny over the mind . Declaration of public policy or a promise of public action or promise to develop the constituency in general do not interfere with free exercise of electoral rights as the same do not constitute bribery or undue influence. In H.V. Karnath v. Ch. Nitiraj Singh, [1969] 3 SCR 813 the State Government during the election period issued an Ordinance granting exemption to certain agriculturists from payment of land revenue and during the election the Chief Minister announced increased dearness allowance to Government employees. Referring to these facts the election petitioner therein alleged that the same amounted to corrupt practice under Section 123(1)(A) of this Act. This Court repelled the contention and held that the Ordinance did not amount to a gift, offer or promise of any gratification within the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was used by the workers of Rajiv Gandhi. Does this make out a corrupt practice under Section 123(5)? Section 123(5) reads as under: The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person (with the consent of a candidate or his election agent) (or the use of such vehicle or vessel for the free conveyance) of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under sub-section (1) of Section 29 for the poll ..... It would be noticed that hiring or procuring of a vehicle by a candidate or his agent or by any other person with his consent is the first essential ingredient of the corrupt practice, the second essential ingredient is that the hiring or procuring of the vehicle must be for conveyance of the voters to and from the polling station and the third necessary ingredient is that conveyance of electors is free from any charge. All the three ingredients must be pleaded to make out a case of corrupt practice under Section 123(5). If any of the three ingredients is not pleaded there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of a vehicle. Even if the word or is understood as a coordinating conjunction introducing alternatives, then also a petitioner in order to succeed on the ground of a corrupt practice under the second part of the clause, must prove in addition to the use of the vehicle or vessel for the free conveyance of any elector to or from any polling station, the hiring or procuring of that vehicle or vessel. This is so because the word such in the phrase introduced by the 1966 amendment, expressly imports these elements of the first into the second part of the clause. Same view was taken by this Court in Dadasaheb Dattatraya Pawar Ors. v. Pandurang Raoji Jagtap Ors., [1978] 2 SCR 524 and the Court emphasised that it was necessary for an election petitioner to prove (i) that any vehicle or vessel was hired or procured, whether on payment or otherwise, by the returned candidate or by his election agent or by any other person with the consent of the candidate or of his election agent; (ii) that it was used for the conveyance of the electors to or from any polling station, and (iii) that such conveyance was free of cost to the electors. Failure to substantiate any one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified in the paragraphs under consideration. The paragraphs as they stand do not make out any charge of corrupt practice as contemplated by Section 123(5) of the Act and the High Court was therefore justified in striking out the same. In paragraph 53(1) (E) of the election petition the appellant stated that as per Section 123(7) of the Representation of the People Act, Rajiv Gandhi s workers with his consent took help from the Government officers and high police officers and people of Government departments for securing votes of the electors. These officials flouted all rules and laws particulars of which are as under. Thereafter particulars of the help taken from the Government officers are detailed in sub-paragraphs (I) to (8). A corrupt practice as contemplated by Section 123(7) contemplates obtaining or procuring by a candidate or his election agent, assistance from the Government servants belonging to the classes specified in sub-section (7) of Section 123 for the furtherance of the prospect of the candidate s election. In order to constitute a corrupt practice under Section 123(7), it is essential to clothe the petition with a cause of action which would call for an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d symbol influenced the voters to a great extent because Rajiv Gandhi s workers were trying to display the hand symbol in the polling booth as well as within 100 meters of the polling booth. The hand symbol was visible to every voter everywhere. This influenced the voters very much and they cast votes in favour of Rajiv Gandhi. The aforesaid allegations do not amount to any corrupt practice as contemplated by Section 123 of the Act. At best these allegations raise a grievance that the Presiding Officers did not perform their duties in accordance with law in as much as they failed in their duty to remove the posters and other propaganda material from the polling booth and the hand which was the election symbol of Rajiv Gandhi and the same was displayed within 100 meters of the polling booth in violation of the rules. The allegations do not make out any charge of corrupt practice. If at all the allegations could be a ground under Section 100(1)(d)(iv) of the Act for setting aside election on the ground of its being materially affected but no such plea was raised. Paragraphs 54 to 58 do not deal with any corrupt practice. The above scanning of the election petition would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , do not disclose any cause of action, therefore it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected. Before we close we would like to express our anxiety on a feature which of late has assumed great proportion. In Parliamentary form of democracy political parties play vital role and occassionally they sponsor candidates for the election. But under the existing law it is open to any elector to contest election from any parliamentary constituency in the country and it is not necessary that the candidate should be sponsored by a political party. It is permissible for an elector to contest election on his own as an independent candidate. Some independent individuals contest election genuinely and some of them have succeeded also but experience has shown that a large number of independent candidates contest the election for the mere sake of contesting, with a view to make out grounds for challenging the election. Presence of a number of independent candidates results in confusion, for the millions of the illiterate and ignorant electors who exercise their electoral right on the basis of symbols ..... X X X X Extracts X X X X X X X X Extracts X X X X
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