1 IN THE HIGH COURT OF BOMBAY AT GOA APPLICATIONS IN ELECTION PETITION NOS. 3, 11 AND 13 OF 2007 IN ELECTION PETITION NO. 5 OF 2007 Shri Dayanand Narvekar ... Applicant versus Smt. Fermeena P. Khaunte ... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. Shivan Dessai, Advocate for the Applicant. Mr. S. M. Walawaikar, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 10TH OCTOBER, 2008 ORDER This Order shall dispose of preliminary objections taken to the maintainability of the petition with applications dated 28-9-2007 (AEP 3/2007), 1/11/2007 (AEP 11/2007) and 29-11-2007 (AEP 13/2007) filed on behalf of the Respondent under Section 86 of the Representation of People's Act, 1951(Act, for short) r/w O VI, Rule 10 and Order VII, Rule 11, C.P.C. along with application dated 4-10-2007, filed on behalf of the Petitioner. The Petitioner has not objected, application dated 29-11-2007 being considered along with application dated 28-9-2007. 2 2. The Petitioner was defeated with 5298 votes whilst Respondent No.1 (referred to herein as the Respondent) was declared elected with 9251 votes at the elections declared on 8-5-2007 and held on 2-6-2007 to the Aldona Assembly Constituency in the State of Goa. The next highest number of votes 6217 were polled by Respondent No.6, a candidate of Bharatiya Janata Party who continues to be the Respondent in the Petition, for best reasons known to the Petitioner although many of the Respondents have been subsequently deleted. 3. The Petitioner's application dated 4-10-2007 needs to be considered first. The Petitioner has averred that she has filed an affidavit in support of her Petition and that the Petitioner did not repeat the nomenclature of the corrupt practices in the body of the affidavit for she bonafidely believed that by filing the affidavit she had complied with the requirements of law and that the Respondent has pointed out that the Petitioner has not filed an affidavit in form No.25 as required by Rule 94-A of the Election Rules, 1961 but the said objection of the Respondent has no substance, but with a view to bring more clarity, the Petitioner be permitted to file the affidavit in form No.25 with a view to bring more clarity to her said affidavit and the said affidavit was being filed without prejudice to the Petitioner's submissions that her earlier affidavit dated 18-7-2007 filed along with the petition was in substantial compliance of the requirements of law. As per the Petitioner, the affidavit filed earlier served the purpose intended to be achieved by law. Along with the said application, the Petitioner has filed the said affidavit in 3 form No.25 and the application has also been supported by an affidavit. The application has been opposed by the Respondent contending that Section 83 of the Act mandated filing of an affidavit in the prescribed form in support of the allegations of corrupt practices and on its failure the Petition is liable to be summarily rejected in exercise of powers under Section 86 of the Act. As per the Respondent, the defect is fatal and is not curable by producing an affidavit at a later point of time. It is the case of the Respondent that the Petitioner admitted that the Petitioner has not mentioned corrupt practices in the body of the affidavit filed along with the petition which does not satisfy the mandate of the proviso to Section 83 of the Act and this is sufficient to dismiss the Petition. The Respondent has stated that the filing of the affidavit in form No.25 is too late to be condoned. It is also contended that the said affidavit does not comply with the requirements of law. According to the Petitioner, the non filing of the said affidavit vitiates the Petition at the threshold. On behalf of the Respondent, it is submitted that the affidavit be not taken on record and the application be dismissed. It is further submitted that in the absence of the affidavit filed within 45 days, there was no petition at all in the eyes of law. 4. Section 83 of the Act deals with contents of the petition and sub-section(1) thereof provides that an election petition (a) shall contain a concise statement of material facts on which the Petitioner relies; (b) shall set forth full particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such 4 corrupt practices and the dates and place of the commission of each such practice; and (c) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings:- Provided that where the Petitioner alleges any corrupt practice, the Petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. 5. The Petitioner did file an affidavit. Filing of an affidavit in cases of allegations of corrupt practices was contemplated by the proviso below sub-section(1) of Section 83 of the Act at a time when the provisions of sub-rule(4) of Rule 15, O.6, C.P.C. were not on the Statute book. With the coming into force of the aforesaid provision of sub-rule(4) with effect from 1-7-2002, in case of a Petition containing allegations of corrupt practices now two affidavits are required to be filed. Admittedly, in this case, the Petitioner did file an affidavit along with the Petition and the case of the Petitioner is that the said affidavit does substantially comply with the requirements of law. In Muravka Radhey Shyam Ram Kumar v. Roop Singh Rathore (AIR 1964 SC 1545) the Constitution Bench of the Apex Court has held that the provisions of Section 83 are not necessarily to be complied with in order to make the Petition valid and such an affidavit can be allowed to be filed at a later stage also(emphasis supplied). In G. Malikarjunappa and another v. Shamanur Shivashankarappa and others(AIR 2001 SC 1829) the Apex Court referred to the case of F. A. Sapa v. Singora((1991) 3 SCC 375) and to the case of Dr.Vijay Laxmi Sadho 5 v. Jagdish(2001 2 SCC 247). In F. A. Sapa v. Singora's case the Apex Court after considering the provisions of Section 83 of the Act as also the requirements of form No.25 prescribed under the Rules and the relevant provisions of the Code of Civil Procedure, observed that “from the text of the relevant provisions of the Act, Rule 94A and form No.25 as well as O.6, R.15, and O.19, R.3, of the Code and resume of the case law discussed, it clearly emerged that (i) a defect in the verification, if any, can be cured and (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true, and (iii) if the Respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the Petitioner may be required to supply the same and (iv) the defect in the affidavit in prescribed form No.25 can be cured. In G. Malikarjunappa and another v. Shamanur Shivashankarappa and others(supra) the Apex Court observed that the requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practices is contained in Section 83(1) of the Act. Non compliance with the provision of Section 83 of the Act, however, does not attract the consequences envisaged by Section 83(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for the alleged non compliance of the provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is curable defect. What consequences, if any, may follow from an allegedly(defective) affidavit is 6 required to be judged at the trial of an Election Petition but Section 86(1) of the Act in terms cannot be attracted to such a case. In the light of the facts of the case at hand where the petition is otherwise supported by an affidavit and leave to file affidavit in form No.25 is sought, the decision cited on behalf of the Respondent in the case of Ashok Tapiram Patil v. Dr. Gurumukh M. Jagwani(Manu/M.H. 0763/2006) can be clearly distinguished and held as inapplicable to the facts of the case at hand. In the light of the law laid down by the Apex Court, there is no reason why leave should not be granted to the Petitioner to file the said affidavit particularly in the light of the decision of the Apex Court in the case of Muravka Radhey Shyam Ram Kumar v. Roop Singh Rathore(supra) where the Apex Court has specifically stated that such an affidavit can be allowed to be filed at a later stage also. Petitioner's application therefore needs to succeed. The contention that the said affidavit does not confirm to form No.25 also needs to be rejected. It does substantially comply with form No.25 in that the averments have been sworn with reference to the averments made in the petition. Even otherwise what other consequences are to follow can only be judged at the trial as ruled by the Apex Court in the case of G. Malikarjunappa and another v. Shamanur Shivashankarappa and others(supra). 6. The petition has been filed on the grounds of corrupt practices under Section 100(1)(b) of the Act and violation of the provisions of sub-section (1)(d)(iv) of Section 100 of the Act. Under the ground of corrupt practices defined under Section 123 of the Act, there are allegations that the 7 Respondent gave: (a) Rs.50,000/- to one Peter Campos to get maximum votes for him (para 6); (b) distributed money from house to house at Socorro on the eve of election i.e. 1-6-2007 at 10 a.m. (paras 7, 13, 19 and 20); (c) distributed/gifted C.D's, T shirts and caps (paras 58 and 43) to the voters which includes the distribution of T shirts and caps at the rally held before the elections were declared. The corrupt practices also include those under Section 123(7) of the Act: (d) of seeking assistance from the members of the police force (paras 7, 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 31, 32, 34, 35, 36, 39, 40, 45, 46, 47 and 50). (e) undue influence that is to say threatening the voters of a meeting called for by the Petitioner on 19-5-2007 (paras 26, 27, 28, 36 and 37). The other grounds are:- (f) violation of Section 126 of the Act on the eve of the election i.e. on 1-6-2007 by holding processions at about 10.00 a.m. at Socorro bazaar and thereafter at the Police Station at about 12.30 p.m. (paras 7 and 14 of the petition). (g) that the nomination of the Respondent was improperly accepted in violation of Section 33A (paras 11 and 51). (h) Respondent incurred expenditure of over Rs.5,00,000/- in violation of Section 77 r/w 123(6) of the Act (paras 57 and 58). 8 7. That takes us to whether the petition needs to be rejected for non disclosure of a cause of action against the Respondent in terms of O.7, R 11(a) C.P.C. r/w Section 86 of the Act. 8. By virtue of Section 87 of the Act, the Court is required to follow the provisions of the Code of Civil Procedure, 1908. O. 6, R.1 defines the expression “pleading” to mean plaint or written statement. Section 83(1)(a) provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies. The language of R.2, O.6 C.P.C. is not different either and it provides that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. Rule 4 of Order 6 provides particulars to be given in cases mentioned therein and in all other cases where they may be necessary. Section 83(1)(b) provides that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and commission of each such practice. 9. The Apex Court in Pothula Rama Rao v. Pendyala Venkata Krishna Rao and others (AIR 2007 SC 2924) after referring to the case of Dharti Parkar Madanlal Agarwal v. Shri K. R. Narayanan (AIR 1987 SC 1557) and with reference to the provisions of O.6, R.16 and O.7, R.11 and upon a 9 combined reading of Sections 81, 86 and 87 has reiterated that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under O.6, R.16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading 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. 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 objection and strike out the pleadings and if after striking out the pleadings the Court finds that no triable issue remains to be considered it has power to reject the election petition under Order 7, Rule 11. Referring to Hari Shankar Jain v. Sonia Gandhi((2001) 8 SCC 233) the Apex Court again reiterated that it is well settled that the material facts required to be stated are those facts which can be considered as material supporting the allegations made. In other words, they must be such facts as would afford the basis of an allegation made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. Further, the Apex Court observed that the expression “cause of action” has been compendiously defined to mean every fact which it would be necessary for the Plaintiff to prove if traversed, in order to 10 support his right to the judgment of the Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. Failure to plead “material facts” is fatal to the election petition. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have also frowned upon vague pleadings which lead a wide scope to lead any evidence. No amount of evidence can cure basic defect in the pleadings. What are the grounds on which an election petition could be filed? What are material facts and particulars has also been considered by the Apex Court from time to time and in this context reference to the case of Mohan Rawale v. Damodar Tatyaba(1994(2) SCC 392) could be made but before that reference could also be made to Ram Prasad Sharma v. Mani Kumar((2003) 1 SCC 289) wherein the Apex Court has stated that in matters relating to elections and election petitions, strict compliance with the legal provisions is necessary and full care is to be taken to see that rights of an elected representative are not lightly disturbed and, it is rightly so, but an election petition is not to be thrown out at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is the substance and not the form which would matter and if it is permitted otherwise, the returned candidate would only be on the 11 look out microscopically for any kind of technical lacuna or defect to abort the endeavour of the Petitioner to bring to trial the issues relating to corrupt practices in the elections. The Apex Court noted that the prevailing situation of elections and practices often said to be adopted now and then and here and there does not always give a very happy picture. Free, fair and fearless elections is an ideal to be achieved and not to be defeated for the sake of pretentious and frivolous technicalities. In F. A. Sappa and others v. Singora and others(supra), the Apex Court stated that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character, it is essential that it must confirm to the requirements of each election law. But at the same time, the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violations. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds. 10. The Apex Court in Mohan Rawale(supra) has stated that: There is a distinction amongst the 'grounds' in Section 81(1); the 'material facts' in Section 83(1)(a) and 'full particulars' in Section 83(1)(b). The ground could be taken as a foundation or basis on which the petition is based to seek relief against a respondent. 12 Referring to Jacob's “The Present Importance of Pleadings”, the Apex Court in the aforesaid decision noted that: “Pleadings do not only define the issues between the parties for the final decision of the Court at the trial, they manifest and exert their importance throughout the whole process of the litigation. ... They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the Court can award. ...” 11. In Azhar Hussain v. Rajiv Gandhi(1986 Supp SCC 315), referring to the expression “material facts” and “particulars” the Apex Court stated that “material facts” which if established would give the Petitioner the relief asked for and the test required to be answered is whether the Court can give a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election on the basis of the facts pleaded in the petition. 12. In V. Narayanaswamy v. C. P.Thirunavukharasu((2000) 2 SCC 13 294) the Apex Court again reiterated that there is a difference between “material facts” and material particulars” and while the failure to plead material facts is fatal to the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. “Material facts” means the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, vide Section 83(1)(a). Then under Section 83(1)(b) the election petition must contain full particulars of any corrupt practice and these are obviously different from the material facts on which the petition is founded. It is not part of the duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by the other side. The Court, has to reject the petition if it does not disclose any cause of action. The Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition(emphasis supplied). The Apex Court also reiterated that material facts and material particulars connote different opinions. In a petition on the allegation of corrupt practices the cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegation of corrupt practices. The Apex Court also referred to the case of D. Ramachandran v. R. V. Janakiraman((1999) 3 SCC 267) and reiterated the view that it is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary 14 objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. The Court cannot probe into facts on the basis of the controversy raised in the counter. 13. In H. D. Revanna v. G. Puttaswamy Gowda and others (AIR 1999 SC 768) the Apex Court has again stated that the material facts should be fully set out in the election petition and if any fact is not set out, the Petitioner cannot be permitted to adduce the evidence relating thereto later; nor would he be permitted to amend the petition after the expiry of the period of limitation. As regards particulars, the petition cannot be dismissed in limine for want of particulars and if the Court finds that particulars are necessary, an opportunity should be given to the petitioner to amend the petition and include the particulars. 14. As can be seen from the summary of the petition referred to in para 6 herein above, the petition has been filed on eight grounds or counts, and, on behalf of the Respondent an attempt has been made to demonstrate that there is no cause of action on each of the said grounds but since the law laid down by the Apex Court is that the petition has got to be dismissed as a whole or not at all suffice it to examine only some of the grounds to find out whether the petition at all deserves to be dismissed for non disclosure of cause of action. 15 15. As regards the allegation of para 6(a), and contained in para 6 of the petition, it is contended on behalf of the Respondent that Rs.50,000/- were paid if at all to the said Peter Campos not to vote for the Respondent but only to get maximum number of votes for the Respondent and as such, such allegation would not be covered under Section 123(1)(A)(b) of the Act. The aforesaid provision to the extent it is relevant, defines bribery as any gift, offer or promise by a candidate or his agent or by any other person with the