TMI Blog1989 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... hed a notice wherein it was declared that the second respondent was withdrawing from the contest and stated, inter alia, that it was to highlight the grievances of his community, namely, the Kudumbi Samudayam which is a backward community, that he had decided to contest the election, and that one of the demands of the community was that it should be included in the list of Scheduled Castes. Further, the second respondent stated in the notice that the Kerala Government under the leadership of the first respondent had decided to give favourable consideration in regard to his community's demand for inclusion in the list of Scheduled Castes. Accordingly, the second respondent declared in the notice that for obtaining their rights, it had become necessary that the first respondent should win in the election and for that purpose he was withdrawing his candidature offering full support to the first respondent. It was alleged that the second respondent published the notice at the investigation and with the assistance and initiative and at the cost of the first respondent and his supporters. Such acts constituted corrupt practice within the meaning of Section 123 of the Act. 4. In pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be presented on one or more the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. (2) (Omitted by Act 47 of 1966.) (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. 9. We are concerned with Section 81(3) which enjoins that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 81(3), however, does not provide for giving of copies of the documents either referred to in the election petition or filed in the proceedings. We may now refer to Section 86(1) of the Act which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1974]3SCR20 , the right to challenge an election is not a common law right, but a special right as conferred by the Act. The provision for setting aside the election on the grounds mentioned in Section 100 of the Act including the ground of corrupt practice has been made for the purpose of maintaining purity of elections. An election is the democratic method for selecting the representatives of the people in Parliament or in the Legislative Assembly. When a candidate gets himself elected by adopting or committing any corrupt practice, his election must be set aside on proof of such corrupt practice. At the same time, the procedure prescribed by the Act for challenging an election must be strictly followed. So, if there be any deviation from or non-compliance with the provision of Section 81(3), the court will have no other alternative than to dismiss the election petition. 14. It has been already noticed that the High Court dismissed the election petition as the appellant has not furnished to the first respondent copies of the notice, photograph and the video cassette referred to above along with a copy of the election petition. So far as the copies of the notice and the photog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition. 17. There may be another situation when a copy of the document need not be served on the respondent along with the election petition. When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. What Section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate. When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents. 18. Keeping in view the above principles, let us consider whether the video cassette, as mentioned in paragraph 5(xi) in the election petition, forms an integral part of the election petition. It is not disputed that a copy of the video cassette was not served on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in Clauses (a) to (g) must be for the; furtherance of the prospect of the election of the candidate who or on whose behalf such assistance has been obtained or procured. It is not disputed that the two Government servants mentioned in paragraph 5(xi) of the election petition whose speeches have been recorded in the video cassette, are Government servants within the meaning of Section 123(7). 20. The speeches of the two Government servants relating to Malayude Purogathi , that is, the progress of Mala, simpliciter will not constitute a corrupt practice within the meaning of Section 123(7). In order to be a corrupt practice within the meaning of Section 123(7), the speeches of the said Government servants as recorded in the video cassette and alleged to have been used in the constituency at the instigation of the first respondent, must be with a view to obtaining or procuring or abetting or attempting to obtain or procure the assistance for the furtherance of the prospects of the first respondent's election. It is urged by the learned Counsel for the appellant that as no such allegation has been made in paragraph 5(xi), the allegations in that paragraph do not constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to deal with the allegations made in paragraph 5(xi). The copy of the election petition which was served on the first respondent without a copy of the video cassette was not, therefore, a true copy of the election petition within the meaning of Section 81(3) of the Act. 23. Much reliance has been placed on behalf of the appellant on a decision of this Court in Sahodrabai Rai v. Ram Singh Aharwar [1968]3SCR13 . In that case, the appellant filed an election petition challenging the election of the first respondent on four grounds, one of which was corrupt practice inasmuch as the first respondent had appealed to religion through a pamphlet marked Annexure A. In the body of the election petition a translation in English of the Hindi Pamphlet was incorporated. The original pamphlet was attached to the election petition and was marked Annexure A. The election petitioner, thereafter, stated in the petition that the pamphlet formed part of the petition. The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and, therefore, the election petition was liable to be dismissed under Section 86 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuency and the number of such banners is about 50. A photograph of one such banner is filed herewith. The cost of each such banner will be not less than ₹ 1000. The expenditure involved in erecting these fifty banners is about ₹ 50,000. It is submitted that the first Respondent has incurred the above said expenditure which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 77(3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act. 27. Admittedly, a copy of the photograph as referred to in paragraph 18(b) was not furnished to the appellant along with a copy of the election petition. This Court took the view that the averment contained in paragraph 18(b) would be incomplete without a copy of the photograph being, supplied with a copy of the election petition. The reason being that it was not possible to conceive of the dimension of the large fancy banner unless one had a look at the photograph. In that view of the matter, it was held by this Court that the photograph formed an integral part of the petition and a copy of it should have been served along with the election petition. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f action under the provision of Order VI, Rule 16 of the CPC. It is submitted by Mr. Poti that if the averments in paragraph 5(xi) of the election petition are irrelevant or do not. disclose any cause of action, at the most the said paragraph can be struck out by the court under the provision of Order VI, Rule 16 of the CPC. We are afraid, we are unable to accept the contention. We are not concerned with whether paragraph 5(xi) can be struck out by the court under the provision of Order VI, Rule 16 of the CPC as not disclosing any cause of action, but really we are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of the video cassette is a true copy of the election petition or not within the meaning of Section 81(3) of the Act. We have come to the conclusion that the appellant has not served on the first respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served along with the election petition. There is, therefore, no substance in the contention which is rejected. 31. Mr. Poti has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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