1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1418 OF 2009 IN ELECTION PETITION NO.4 OF 2009 Dr. Kirit Jayantilal Somaiya Son of ) Jayantilal Somaiya, residing 701/9C ) Neelam Nagar Phase II, Gavanpada Road, ) Mulund (E), Mumbai-400 081. )..Petitioner. V/s. 1. Sanjay Dina Patil, Sanjay Apartment, ) 3 floor, Room No.13, Dina Patil Estate, ) Station Road, Bhandup (W), Mumbai 400 078. ) ) 2. Ashok Chandrapal Singh, Vidyalata Niwas ) Khindipada, Mulund Goregaon Link Road, ) Mumbai - 400 082. ) ) 3. Sanjay Dhaku Kokre, K-7/10,Barve Nagar ) Colony, Ghatkopar (W), Mumbai 400 084. ) ) 4. Manisha Mukesh Gade, 24-B-304, Sahyadri ) Co-operative Hsg.Soc., Powai, MHADA, ) Hiranandani, Mumbai - 400 076. ) ) 5. Vishnanath Dattu Patil, Powai Cloretion Hsg. ) Soc. J.V. Link Road, Opp. I.E.S. School, ) Powai, Mumbai - 400 072. ) ) 6. Shishir Shinde, 1, Gulmohor, G.V. Scheme ) Road No.1, Mulund (E), Mumbai 400 081. ) ) 7. Jayesh C. Mirani, Plot No.16, Nimbkar Co-op. ) Hsg. Soc., Malbar Hill Road, Mulund Colony, ) Mulund (W), Mumbai - 400 082. ) ) 8. Tatyasaheb Revdekar, 4/25,Peru Chawl, Dr. ) Road, Lalbaug, Mumbai - 400 012. ) ) 9. Diksha Jitendra Jagtap, Plot No.18/H/8, ) Bainganwadi, Shivajinagar No.2, Govandi, ) Mumbai - 400 043. ) ) 10. Dharampal Bhagwan Meshram, New Rahul ) 2 Nagar, Guru Govindsingh Marg, Mulund ) Colony, Mulund (W), Mumbai - 400 082. ) ) 11. Namdev Tukaram Sathe, Ramabai ) Ambedkar Nagar, Vasantrao Naik ) Mahamarg (E), Behind Mun. School, ) Ghatkopar (E), Mumbai - 400 075. ) ) 12. Narayan Anand Rokade, Gautam Nagar, ) Dumping Road, Amrapali Society ) Mulund (W), Mumbai - 400 080. ) ) 13. Pankajbhai Somchand Shah, A/602, ) Vardhman Nagar, Dr. R.P. Road, ) Mulund (W), Mumbai - 400 080. ) ) 14. Prakash D.Kamble, Ramanmama Wasahat, ) Near Chhota Buddha Vihar, Bainganwadi ) Gowandi, Mumbai - 400 043. ) ) 15. Sunita Mohan Tupsoundarya, Dr. Babasaheb ) Ambedkar Nagar Zopadpatti, Behind Bldg. ) No.7/11, R.No.12, Sion Koliwada, ) Mumbai - 400 022. )..Respondents. Mr. M.M. Vashi with Bruno Castellino & Vinay Bhanushali i/b. Divya Shah Associates for petitioner. Mr. Aspi Chinoy, senior Advocate with Vijay Kumar and Prashant Kulkarni i/b. Zohar & Co. for respondent No.1. CORAM : J.P. DEVADHAR, J. JUDGMENT RESERVED ON : 29TH JANUARY, 2010 JUDGMENT PRONOUNCED ON : 10TH MARCH, 2010 JUDGMENT 1) This Chamber Summons is taken out by the Respondent No.1 seeking dismissal / rejection of the election petition or in the alternative striking off / deletion of paragraphs 8, 9, 10 & 11 of the Election Petition filed 3 by the petitioner to challenge the election of the respondent No.1 to the Lok Sabha from the Mumbai North East Constituency No.28 ('the constituency in question' for short). 2) Parliamentary election to the Lok Sabha were held at Mumbai on 30-4-2009, wherein, the petitioner as well as the respondent Nos.1 to 15 had contested the said election from the constituency in question. The petitioner had contested the election as a candidate nominated by the Bhartiya Janata Party ('BJP' for short), whereas the respondent No.1 had contested the election as a candidate nominated by the Nationalist Congress Party ('NCP' for short). The results of the said election were declared on 16/5/2009 wherein, the respondent No.1 was declared to have been elected by polling highest number of votes, namely, 2,13,505 votes and the petitioner was declared to have polled second highest votes, namely, 2,10,572 votes. Thus, the respondent No.1 was declared elected by a margin of 2933 votes. 3) The petitioner challenged the election of the respondent No.1 by filing the above Election Petition within the time specified the under provisions of the Representation of the People Act, 1951 ('1951 Act' for short) on the following grounds:- (a) In para 8 of the petition, the Petitioner alleged that the respondent No. 1 had committed corrupt practice of 'bribery' as defined under section 123(1) of the 1951 Act in as much as the respondent No.1 or his election agent or any person with the consent of the respondent No.1 or his election agent, had distributed money to the voters seeking 4 votes in favour of the respondent No.1. (b) In para 9 of the petition, the Petitioner alleged that the respondent No. 1 and / or his election agent and / or other persons with the consent of respondent No.1 and / or his election agent had directly or indirectly interfered or attempted to interfere with the free exercise of the electoral right of the voters by distributing pamphlets / hand bills at Ghatkopar (East) and Mulund areas of the constituency in question in the name of two local BJP MLA's, namely Shri Prakash Mehta and Shri Sardar Tara Singh. The petitioner alleged that in the said pamphlets / handbills, it was falsely and mischievously stated that the aforesaid two BJP MLA's were appealing to the voters to vote in favour of the respondent No.1 an NCP candidate (instead of the petitioner who was the BJP candidate). (c) In para 10 of the petition, the petitioner alleged that the respondent No.1 in his account of election expenses submitted to the Election Commission has falsely stated to have printed 5000 pamphlets each of Exhibits M1 to M11 (5000 x 11 = 55,000) and 10,000 pamphlets of Exhibit M12 at a total cost of Rs.32,500/-. According to the petitioner, the respondent No.1 had printed 1,00,000 pamphlets each of Exhibits M1 to M12 (1 lac x 12 = 12 lacs). These pamphlets, according to the petitioner, can be printed at a cost of Rupee 1/- to Rs.2.50 per pamphlet and therefore, the cost of printing 12 lac pamphlets would be more than Rs.20 lacs. Similarly, it is alleged that the respondent No.1 has falsely stated to have spent Rs.1,47,888/- on printing and 5 distributing the voter's slip. According to the petitioner, the voter's slip is normally distributed by a candidate to all the voters in his constituency. There were in all 15,80,000 voters in the constituency in question. Therefore, calculated at the rate of Rs.0.30 paise (approx) per voter's slip, the cost of printing 15,80,000 voter's slips would be Rs.4,74,000/-. In these circumstances, the petitioner alleged that the total cost of the pamphlets, voter's slips and several other campaign expenses incurred by the respondent No.1 would be in excess of Rs. 25 lacs whereas the maximum amount that can be spent by a candidate under section 77 of the 1951 Act is Rs.25 lakhs and, therefore, the respondent No.1 is guilty of not submitting correct account of all expenditure as contemplated under section 77 of the 1951 Act. Apart from the above, the petitioner has alleged in para 10 of the petition that the respondent No.1 had published his name, photograph and the symbol on the voter's slip which is in violation of the guidelines issued by the Election Commission of India. d) Lastly, in para 11 of the petition, the petitioner has sought recounting of all the votes polled in the constituency in question on the ground that counting of votes on the counting day was done so fast that there was total chaos and that on the counting day the central observer had failed to recount two EVM machines in the presence of the election agent in each round randomly as mandated by the guidelines laid down by the Election Commission of India. It is further alleged that the election agent of the petitioner had made an application before the 6 returning officer seeking recounting of votes but no written order has been passed by the Returning Officer on the said application till date, which is in contravention of para 26.3 of the 'Handbook for returning officers' issued by the Election Commission of India. It is further alleged that the working sheet of the counting agent as well as the working sheet available with the petitioner show that in booth No.122 at Ghatkopar, the respondent No.2 had secured one vote and the respondent No.1 had secured 7 votes whereas, the official vote sheet shows that in booth No.122 at Ghatkopar, the respondent No.2 had secured 4 votes and the respondent No.1 had secured 75 votes. It is further alleged in para 11 of the petition that the data furnished to the petitioner by the Election Commission shows that the votes polled at the polling station No.40 were 298, whereas, the votes counted at that polling station are 545 votes. Similarly, at polling station No.136, the votes shown to have been polled are 319 votes, whereas, the votes counted at that polling station are 401 votes. In these circumstances, the petitioner has prayed for recounting of all the votes polled in the constituency in question. 4) On service of the above election petition, in stead of filing a written statement, the respondent No.1 has taken out the present Chamber Summons seeking dismissal / rejection of the above election petition under Order VII Rule 11 of the Code of Civil Procedure, 1908 ('C.P.C' for short) or alternatively, the petitioner has sought an order for striking off / deletion of paragraphs 8, 9. 10 & 11 of the election petition under Order VI Rule 16 of 7 the C.P.C. 5) Under Section 83 of the 1951 Act, an election petition must contain a concise statement of the material facts on which the petitioner relies and also full particulars of any corrupt practice that the petitioner alleges. If material facts with full particulars are not set out, the election petition is liable to be dismissed / rejected under Order VII Rule 11 of the C.P.C. Similarly, the pleadings in an Election Petition can be struck off / deleted under Order VI Rule 16 of the C.P.C., if the Court finds that any pleading is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the Suit or the pleading is otherwise an abuse of the process of the Court. 6) The question, therefore, to be considered in the present case is, whether the respondent No.1 is justified in claiming that the election petition filed by the petitioner is liable to be dismissed under Order VII Rule 11 of the C.P.C., or in the alternative, paras 8, 9, 10 and 11 of the said Election Petition are liable to be struck off under Order VI Rule 16 of the C.P.C. ? 7) The Apex Court in the case of Ram Sukh V/s. Dinesh Aggarwal reported in (2009) 10 Supreme Court Cases 541 has inter alia held thus:- "....It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of 8 the law. Nevertheless; it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act." (see para 8). " At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice the distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub-section (1) of Section 83. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. "Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that the opposite party is not taken by surprise. (see para 15) "...Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that the opposite party is not taken by surprise." " Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to 9 occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in discharge of his public duties for which the electorate have reposed confidence in him..." (see para 18) 8) In the light of the aforesaid ratio laid down by the Apex Court, rival contentions relating to the question as to whether the Election Petition filed by the petitioner deserves to be rejected under Order VII Rule 11 or the pleadings contained in paras 8, 9, 10 and 11 of the said election petition are liable to be struck off under Order VI Rule 16 of the C.P.C. would have to be considered. 9) The first allegation of the petitioner set out in para 8 of the election petition is that the respondent No.1 had committed the corrupt practice of bribery as contemplated under Section 123 of the 1951 Act. According to Mr. Aspi Chinoy, learned Senior Advocate for the respondent No.1, the above allegation is based on mere surmises or conjectures and that the allegation set out in para 8 of the election petition lacks material facts or material particulars or ingredients of the corrupt practice as required by law and as held by the Courts. Mr. Chinoy submitted that in para 8 of the petition it is alleged that at about 12.50 a.m. on 30-4-2009 NCP workers were found distributing cash to the voters at the corner of Road No.4 and Road No.54 at Shivaji Nagar, Govandi. It is alleged that on being informed, Mr. Anil Gajanan Thakur, Mumbai BJP Secretary visited the spot and personally witnessed the distribution of cash to voters in exchange of their votes. It is 10 alleged that Shri Anil Thakur informed the police, who on arrival at the site arrested three persons, namely Habib Abbas Faki, Mangesh Narain Sitekar and Sanjay Babban Shedge and seized the vehicle (white Indigo Car bearing No. MH-04-DE-6284) used by those three persons along with cash amounting to Rs.2,47,450/-. It is further alleged in the petition that F.I.R. No. 1481 of 2009 has been registered against the said three persons and the seized car and the cash has been confiscated. Subsequently, the said three persons were produced before the Court and were released on cash bail of Rs.5,000/- each. The petitioner has alleged that the said three persons were NCP workers who were working for the respondent No.1 and in support of that contention, the petitioner has relied upon the articles published in Times of India and Urdu Times dated 1/5/2009. 10) According to Mr. Chinoy, the petitioner has not stated in para 8 of the petition as to when the respondent No.1 had allegedly made any gift to any voter / electoral, when and how the election agent or any other person with the purported consent of the respondent No.1 had given gift to the voters / electors, whether such alleged gift / inducement was for voting in favour of respondent No.1 or to refrain from voting, the name of the alleged voter / elector to whom such gift was given, how the petitioner has concluded that the alleged cash seized from the three persons were for the purposes alleged or for any other purposes ? Mr. Chinoy submitted that in the absence of any independent evidence in support of the above allegations, it must be held that the election petition lacks material facts relating to bribery and, therefore, the election petition is liable to be dismissed or in the alternative para 8 of the 11 election petition is liable to be struck off. 11) Relying upon the decisions of the Apex Court in the case of C. Narayanswamy V/s. C.K. Jaffer Sharief reported in 1994 Suppl (3) S.C.C. 170 and Azhar Hussain V/s. Rajiv Gandhi reported in A.I.R. 1986 S.C. 1253, Mr. Chinoy submitted that where the corrupt practice alleged in the election petition is vague and where there is non-disclosure of even a single material fact would lead to incomplete cause of action. He submitted that in para 8 of the petition, it is alleged that the respondent No.1 / his agents / other persons with the consent of the respondent No.1 and/or his election agent have committed corrupt practices of bribery. Since the petitioner has not stated the names of the election agent or the names of other persons who had allegedly with the consent of the respondent No.1 / his agent had distributed money, it must be held that material facts have not been set out in the election petition. Similarly, the petitioner has failed to specify which of the three alteratives he meant to plead and, therefore, it is impossible to ascertain the case which the respondent No.1 has to meet. In these circumstances, the counsel for the respondent No.1 submitted that the election petition is liable to be dismissed or in the alternative, para 8 of the election petition is liable to be struck off / deleted. 12) Mr. Vashi, learned Advocate for the petitioner on the other hand submitted that in para 8 of the election petition, the petitioner has specifically set out full particulars relating to the corrupt practice of bribery committed by the respondent No.1 / his election agent / other persons with the consent of 12 the respondent No.1 / his agent. In para 8(k) & (l) of the petition, it is specifically alleged that money was distributed by the respondent No.1 through the three NCP workers (who are arrested by the police) with the intention to gather votes for the respondent No.1 and as a result of this corrupt practice the respondent No.1 has secured 5915 votes, while the petitioner got only 378 votes in that area. 13) Relying upon the decisions of the Apex Court in the case of Virendra Nath Gautam V/s. Satpal Singh & Ors. reported in 2007 AIR SCW, 146 and Mahadeo Sukaji Shivankar V/s. Ramratan Bapu & Ors. reported in (2004) 7 Supreme Court Cases 181, Mr. Vashi submitted that the material facts which are required to be pleaded in the election petition as required by section 83(1) of the 1951 Act have been pleaded in the election petition and no case is made out for dismissal of the petition under Order VII Rule 11 or for striking off the pleading under Order VI Rule 16 of the C.P.C. 14) On careful consideration of the rival submissions, I find it difficult to accept the arguments advanced on behalf of the respondent No.1 that the full particulars of material facts relating to corrupt practice of bribery have not been pleaded in the election petition. The petitioner has alleged in sub para (k) and (l) of para 8 of the petition that on 30-4-2009 at about 12.50 a.m., three NCP workers were found distributing cash seeking votes in favour of respondent No.1 at a particular place in the constituency in question. Even the exact location where the money was allegedly distributed to the voters is set out in the petition. The petitioner has alleged that Mr. Anil 13 Thakur, Mumbai BJP Secretary has witnessed the distribution of cash to the voters by the said three persons. The petitioner has alleged that on a complaint made by Mr. Anil Thakur, the above three persons have been arrested by the police from the spot set out in the petition and the vehicle used by the arrested persons as well as cash amounting to Rs.2,47,450/- has been seized from the said three persons. The petitioner has alleged that in the panchanama it is recorded that the three persons arrested by the police were seeking vote in favour of respondent No.1. Admittedly, F.I.R. No.1481 of 2009 has been registered against the aforesaid three NCP workers and further investigations are in progress. The allegation that the three arrested persons were NCP workers and that the said three persons were allegedly distributing money to the voters is also reported in the Times of India and Urdu Times dated 1/5/2009. 15) These facts set out in para 8 of the petition, in my view, would constitute disclosure of material facts relating to the corrupt practice of bribery as contemplated under section 83 of the 1951 Act. Whether the three persons arrested by the police were in fact NCP workers, when and were the said three persons obtained consent of the respondent No.1 / his agent for distributing cash in lieu of votes in favour of the respondent No.1, whether the seized cash was meant to be distributed to the voters in lieu of votes in favour of the respondent No.1 and who were the voters to whom the cash was distributed in lieu of votes in favour of respondent No.1 would depend upon the evidence led by the petitioner during the trial. If the petitioner fails to conclusively establish the material facts relating to the 14 allegation of bribery alleged in para 8, the petition would fail. Therefore, in the facts of the present case, it is clear that in para 8 of the petition concise statement of material facts relating to the allegation of bribery have been set out and the fact that the petitioner has not given the particulars which are relevant to establish the material facts cannot be a ground to dismiss / delete para 8 of the election petition. 16) Strong reliance was placed by the counsel for the respondent No.1 on the decision of the Apex Court in the case of Azhar Hussein (supra). In that case, the allegations in the election petition was that Shri M.H. Beg, former Chief Justice of India and a close friend of Nehru family had appeared on the Government controlled news media and made a speech praising Shri Rajiv Gandhi, the respondent therein. Since Mr. Beg was the Chairman of the Minorities Commission, it was alleged in the election petition that the respondent therein or his agent or other persons with the consent of the respondent therein or his agent had engaged the services of Mr. Beg, a gazetted officer in gross violation of the election law. In the election petition, it was not stated that Mr.Beg was a person in the service of the Government as specifically required by Section 123(7) of the 1951 Act. In that context, it was held by the Apex Court that in the absence of a statement that Mr. Beg was a person in the service of the government and in the absence of the names of the election agent of the respondent No.1 therein or the names of the persons who with the alleged consent of the respondent therein / his agent had obtained the services of Mr. Beg, the petition cannot be sustained, because, in the absence of the names of the election agent / names of other 15 persons, the respondent would not know the specific