1 (AEP2.2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO.2 OF 2011 IN ELECTION PETITION NO.5 OF 2009 Sanjeev Ganesh Naik ) Adult, residing at Kalash ) Udyan Building No.1, ) Sector 1, Narayan Fakirji Marg ) 40-08, Kopar Khairane, ) ...Applicant. Navi Mumbai – 400 709 ) (Orig. Respondent in Election Petition) V/s Vijay Laxman Chougule ) Adult, residing at House No.585 ) Sainath Wadi, Airoli Village, ) ...Respondent. Navi Mumbai – 400 079 ) (Orig. Petitioner in Election Petition) Mr. Rajesh Datar for the Applicant/original Respondent. Mr. S.M. Oka with Mr. Sagar Joshi for the Respondent/original Petitioner. CORAM: V. M. KANADE, J. DATE : 23rd June, 2011 2 (AEP2.2011) ORAL ORDER: 1. This application has been filed by the Applicant who is the original Respondent in Election Petition No.5 of 2009 and he has prayed that this Court may be pleased to reject the Election Petition under the provisions of Order VII Rule 11(a) of the Code of Civil Procedure, 1908 on the ground that the Election Petition does not disclose any cause of action and that, on that ground itself, it may be dismissed. 2. Brief facts are as under :- 3. Applicant contested the 15th parliamentary elections from 25th, Thane Constituency which was held on 30/5/2009 and he was elected and received about 55000 more votes than the Respondent herein. 4. Respondent, initially, filed a Writ Petition in this Court being Writ Petition No.4145 of 2009 and, in the said Writ Petition, he prayed for direction to the Returning Officer to delete the prefix “Dr.” from the name of the applicant herein who was Respondent No.6 in the said Petition. Secondly, it 3 (AEP2.2011) was contended that the assertion made by the Applicant that he was a doctor was false and this was done only to get attention of voters and to influence them. Thirdly, it was contended that the Returning Officer could not have made any changes in the name after nomination was accepted. The Division Bench of this Court by Order dated 27/04/2009 passed in Writ Petition No.4245 of 2009 observed in para 3 as under:- “3. In this view of the matter, we do not want to interfere at this stage. However, we make it clear that even after declaration of results, this Petition will be considered and decided on merits and the pleading will not be entertained by the respondents that after elections, election petition should be filed and thus the Petition has become infructuous. However, any objections regarding maintainability of this Petition may be raised.” The applicant challenged the order passed by the Division 4 (AEP2.2011) Bench by filing the SLP in the Apex Court. The said SLP has been admitted and the order of the Division Bench has been stayed. After the elections were held, Respondent filed the Election Petition and in para 15 of the Election Petition it was contended that the Applicant had dishonestly prefixed the word “Dr.” before his name merely to induce the voters in his constituency to cast their votes in his favour. It was contended that the Applicant had not acquired any special knowledge by taking personal efforts but had managed to obtain a degree of doctorate from a foreign institution by virtue of his post as Mayor of New Mumbai Municipal Corporation. It was, therefore, contended that the Applicant had unduly influenced the free exercise of electoral right of voters by projecting himself as “Dr.”. After the notice was served on the Respondent i.e. the Applicant herein, he has filed an application under Order VII Rule 11(a) for dismissal of the Election Petition on the ground that it does not disclose any cause of action. 5. Shri Datar, the learned Counsel appearing on behalf of the Applicant submitted that the allegations made in para 15 5 (AEP2.2011) of the Petition that, the Applicant, by using the word “Dr.” before his name, had unduly influenced the voters and, therefore, had committed corrupt practice, did not fall within the definition of the word “corrupt practice” as defined under section 123(2). It was submitted that the word “undue influence” is not defined and, as such, the allegations made were not covered by the provisions of section 123(2). It was then submitted that under section 100, the grounds for declaring the election to be void were mentioned and under sub-clause (d) it had to be shown that the result of the election had been materially affected by any corrupt practice committed in the interest of the returned candidate. It was submitted that there were no averments in the Petition as to how the result of the election was materially affected as a result of the said corrupt practice. Secondly, it was submitted that the Respondent herein i.e Petitioner in the Election Petition had not pleaded material facts and had not given material particulars about the corrupt practice. Lastly, it was submitted that under section 83(3), an affidavit had to be filed in support of the Election Petition. It was submitted that though such an 6 (AEP2.2011) affidavit was filed, the said affidavit also lacked material facts and material particulars about the corrupt practice. In support of the said submission, the learned Counsel appearing on behalf of the applicant relied on paras 5, 9, 14, 17, 18, 28, 29, 32 and 33 of the judgment of the learned Single Judge of this Court in Ashok Mahadeorao Mankar vs. Rajendra Bhausaheb Mulak1 and also another judgment of the learned Single Judge of this Court in Singh Shamsher Rambahal vs. Election Commissioner and others2 6. The learned Counsel appearing on behalf of the Respondent – original Petitioner, however, on the other hand, submitted that the word “undue influence” is not defined in section 123(2) and merely two illustrations were given in the said section as to what amounted to undue influence. He submitted that, however, the said definition is not an exhaustive definition. He submitted that even mere attempt to cause undue influence is also included in the said definition. He submitted that conferment of a degree had to be in accordance with the acts or rules and none of the acts 1 2010(5) Bom.C.R. 104 [NAGPUR BENCH] 2 2011(1) Kh.L.J. 620 7 (AEP2.2011) or rules which were reproduced in the section could be made applicable to the conferment of a degree to the applicant by the Foreign University. It was submitted that the word “undue influence” in relation to elections, was made punishable under section 171-C of the Indian Penal Code. It was submitted that if the said provisions were taken into consideration then prefixing the word “Dr.” before the name of the candidate would amount to unduly influencing the elections within the meaning of section 123(2). It was submitted that, therefore, at this stage, Petition could not be dismissed on this ground since Respondent/original Petitioner was entitled to lead evidence to prove the allegation of undue influence exercised by the Applicant herein by prefixing the word “Dr.” before his name. It was submitted that there was no dispute regarding incorporation of the word “Dr.” and further the said act was done at the instance of the candidate viz. the Applicant herein. It was, therefore, submitted that the act of incorporating the word “Dr.” to his name, therefore, could not be disputed. Counsel for the Respondent/original Petitioner, therefore, submitted that there were sufficient averments made in para 15 of the 8 (AEP2.2011) said Election Petition and the said averments had to be read alongwith other averments which were made in the Petition. He, therefore, submitted that ratio of the judgments on which reliance was placed by the learned Counsel for the Applicant herein would not apply to the facts of the present case. 7 Before taking into consideration the rival submissions, it will be necessary to examine the relevant provisions. It is an admitted position that the election petition can be filed for challenging the election of the returned candidate on the grounds which are mentioned under section 100 of the said Act. One of the grounds for declaring the election to be void is to prove that any corrupt practice has been committed by the returned candidate or by his election agent or any other person with the consent of the returned candidate or his election agent. The term “corrupt practices” has been defined under section 123 of the said Act. One of the corrupt practices which is alleged to have been committed by the returned candidate is one which falls under section 123(2). The specific allegation of the Petitioner is that the 9 (AEP2.2011) returned candidate has exercised undue influence and has directly interfered with the free exercise of an electoral right by describing himself in the nomination paper as “Dr.” which is used as prefix before his name. The allegation is that by using this prefix, he has influenced the voters by representing that he is a learned and qualified person and, therefore, the voters should elect him. 8 On the other hand, the learned Counsel appearing on behalf of the Respondent has contended that even if the allegation which is made by the Petitioner in the Petition is accepted at its face value, it would not fall under the definition of “undue influence” as defined under section 123(2). Secondly, it is submitted that the mandatory provisions of section 83 have not been complied with since full particulars of corrupt practice have not been stated in the Election Petition and, therefore, the Petition is liable to be dismissed on both these counts. 9 So far as the first submission is concerned, it will be necessary to examine the relevant provision viz. section 10 (AEP2.2011) 123(2) which reads as under:- “123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purpose of this Act:- (1).......... (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right: Provided that - (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who- (i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex- communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of 11 (AEP2.2011) divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (b).............................................” The word “undue influence” has not been defined in the said Act. Sub-section (2) also does not in terms define the said term bur merely states that “any direct or indirect interference or attempt to interfere..........with the free exercise of any electoral right”. Sub-section (2), therefore, if a plain meaning is given to the said provision, refers to any direct or indirect interference or even attempt to interfere with the free exercise of any electoral right. After defining the said corrupt practice and without prejudice to the said general definition, two specific instances have been mentioned in Sub-section (2)(a)(i) and (ii). Sub-section (2)(a) (i) refers to threat and Sub-section (2)(a)(ii) refers to any inducement or even attempt to induce. Both, threat and inducement is further elaborated in the said proviso. 10. On a plain reading of the said provision, therefore, it is 12 (AEP2.2011) clear that a very wide meaning is conferred on the said provision and it also clarifies that apart from wide definition of the word “undue influence” which is given in Sub-section (2), other instances referred to in Sub-section (2)(a)(i) and (ii) would also be included within the said definition of the word “undue influence”. Therefore, it has to be seen whether the allegation in the Petition falls within either wide definition which is given in Sub-section (2) or within specific instances which are mentioned in Sub-section (2)(a)(i) and (ii). 11. The word “undue influence” has been defined in Advanced Law Lexicon 3rd Edition, 2007 Vol.4 as under:- “A contract is said to be used by ‘undue influence’ where the relations subsisting between the parties is in a position to dominate will of the other and uses that position to obtain an unfair advantage over the other.” [Indian Contract Act (9 of 1872), S.16(1).” 13 (AEP2.2011) “The word “undue” when qualifying ‘influence’ has a legal meaning of ‘wrongful’ as opposed to, ‘excessive’, inordinate or disproportionate’. Undue influence is understood to be held, when it overpowers the will without convincing the judgment. It is a grip on another’s mind subjugating his will to that of the other. It is an influence which acts to the injury of a person, who is swayed by it, and is exerted by exercising an ascendency or power, which results in a person being impelled or compelled to do what he would not have done, if he had been an free agent Karnal Distillery Co. Ltd. v. Ladli Prasad Jaiswal, AIR 1958, Pun 190, 203. [Indian Contract Act 9 of 1872), S.16)” “A declaration of public policy or promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. (Election Offences and Enquiries Act, S. 2)” 14 (AEP2.2011) The Apex Court in Sterling General Insurance Co. Ltd. vs. Planters Airways Pvt. Ltd1 has observed in para 14 of its judgment as under:- “14. Therefore, we will have to take a liberal view of the meaning of the words “undue hardship”. “Undue” must mean something which is not merited by the conduct of the claimant, or is very much disproportionate to it.” Black’s Law Dictionary has defined “undue influence” as the improper use of power or trust in a way that deprives a person of free will and substitutes another’s objective. When at the turn of the twentieth century, the common law doctrine of duress was expanded to provide relief for coercion irrespective of the means of coercion, much of the work of undue influence became unnecessary. The doctrine has a much more specialized role today, although often enough the precedents decided when the more general doctrine prevailed are cited and quote to the general confusion of the profession. Today the gist of the doctrine is 1 AIR 1975 SC 415 (at page 419) 15 (AEP2.2011) unfair persuasion rather than coercion. Euphoria rather than fear is often, but certainly not always, the state of mind of the party unduly influenced. 12. In the present case, therefore, by mere use of the word “Dr.” which is used as a prefix, cannot be said to overpower the will of the electorate in voting in favour of that candidate. In an election, a candidate is expected to influence the voters to vote in his favour. It is only when the “undue influence” is used which has an effect of overpowering the will, it would fall within the ambit of corrupt practice as defined under section 123(2). 13. The question, therefore, which has to be asked in this case is : whether by using the prefix “Dr.” to his name, the applicant had deprived the electorates of free will and thereby were persuaded to vote in favour of the applicant? The answer will have to be in the negative. 14. Taking into consideration the allegations which are made in the Petition, it definitely does not fall within the 16 (AEP2.2011) instances which are mentioned in Sub-section 2(a)(i) and (ii) since, admittedly, there has been neither a threat given by the candidate or by any person who is interested in that candidate with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community. Similarly, there is no allegation of inducement or any attempt to induce a candidate that any person in whom he is interested, would be rendered an object of divine displeasure or spiritual censure. 15. Therefore, it has to be seen whether the allegation which is made would fall within the ambit of wide definition given in section 123(2). Since, there is no direct judgment available, it will be necessary to take into consideration the judgments of the Apex Court and High Courts to find out how the word “undue influence” has been interpreted. 16. The Apex Court in Ram Dial vs. Sant Lal and others1 has taken into consideration the difference between Indian and English Law on this subject and has observed that decisions 1 AIR 1959 SC 855 17 (AEP2.2011) of English Courts based on the English statute are not strictly in pari materia with the words of the Indian statute and, therefore, cannot be used as presidents in this country. However, while doing so, the Apex Court has observed in para 8 of the said judgment as under:- “(8)........... The Indian law, on the other hand, does not emphasize the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. What is material under the Indian law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. 17. It will also be profitable to take into consideration the observations made by the Apex Court in Naresh Charan Das Gupta vs. Paresh Charan Das Gupta and another 1. Though the said judgment was given in an appeal arising out of the application filed by Respondent No.1 for probate of a Will, 1 AIR 1955 SC 363 18 (AEP2.2011) the Apex Court considered the meaning of the expression “undue influence” and, in that context, the observations made by the Apex Court in the said judgment in para 10 would be relevant, which read as under:- “10 It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as “undue”. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion – it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories – the will can not be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in - ‘Hall v. Hall’, (1868) 1 P & D 481 at p. 482 (C): “But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are 19 (AEP2.2011) all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, - these, if carried to a degree in which the free play of the testator’s judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition and not the record of some one else’s”. ...........” The Constitution Bench of the Supreme Court had an occasion to consider the meaning of the term “undue influence” as defined under the Presidential and Vice- 20 (AEP2.2011) Presidential Elections Act (1952) in Baburao Patel and others vs. Dr. Zakir Hussain and others1. However, section 18 of the said Act specifically laid down that “undue influence” would have the same meaning as in Chapter IX-A of the Indian Penal Code and Section 171-C. While examining the said question, the Apex Court also took into consideration the provisions of Section 123(2) of the Representation of the People Act (1951) and observed in para 18 that definition in the said Act was more or less in the same language as in Section 171-C of the Indian Penal Code, the only exception being that the words “direct or indirect” had been added to indicate the nature of interference and, therefore, the Apex Court went on to observe that definition of “undue influence” in the Representation of the People Act may be wider than the definition of the same term under section 171-C of the Indian Penal Code. In this context, the Apex Court referred to cases under the election law to see how the Election Tribunal had considered this aspect while examining the scope of the word “undue influence”. However, all the cases which were referred to, were 1 AIR 1968 SC 904. 21 (AEP2.2011) pertaining to cases where the Ministers had canvassed for their candidates and it was observed that such canvassing does not amount to undue influence but it was a proper use of the Ministers’ right to ask the public to support the candidates belonging to the Ministers’ party. 18. Keeping in view the observations made by the Apex Court, it will have to be examined whether the allegation made in this case would fall under the wide definition of the word “undue influence”. Even if the definition is wide, it encompasses situations of any direct or indirect interference or attempt to interfere with the free exercise of any electoral right. In my view, describing a person as “Dr.” would not by any stretch of imagination fall within the ambit of this definition, even assuming that the allegation made in the present Petition is accepted. The learned Counsel appearing on behalf of the Petitioner in Election Petition vehemently urged that by doing so the Respondent i.e. applicant herein had represented to the voters that he was having good educational qualification and, therefore, was competent to represent them and, therefore, had interfered with the free 22 (AEP2.2011) exercise of any electoral right. This submission in my view, cannot be accepted. It is alleged that the returned candidate had distributed pamphlets in which he has described himself as “Dr.” which degree, according to the Petitioner was not conferred by any recognized authority. Even if the said allegation is accepted, merely describing oneself as a “Dr.” would not tend to be an act which would interfere with the free exercise of any electoral right and, therefore, in my view, the said allegation of addition a prefix “Dr.” to the name of the returned candidate would not fall within the definition of section 123(2). Admittedly, there is no provision in the Act which suggest that such an act is prohibited under the statute or amounts to disqualification within the meaning of section 100. In the Petition, it is also urged that the Respondent, applicant herein, has committed an offence of cheating under sections 415, 416, 171-C, 171-G of the Indian Penal Code. The offences which are punishable under the Indian Penal Code have not been included in the grounds for declaring the election to be void and, therefore, even assuming that the returned candidate has committed the said offence, the remedy of the election 23 (AEP2.2011) petitioner would be to prosecute the returned candidate under the provisions of the Indian Penal Code but that would not give