D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Smt. Kiran Kanwar vs. The District & Sessions Judge, Bikaner & ors. D.B. Civil Special Appeal (Writ) No.652/08 under Rule 134 of the Rules of High Court of Judicature for Rajasthan 1952 against the order dated 20.5.2008 passed by the learned Single Judge in S.B. Civil Writ Petition No.6899/2006. Date of Judgment: August 06, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. C.M. TOTLA,J. Mr. Vijay Bishnoi for the appellant. BY THE COURT The appellant has challenged the order dated 20.5.2008 passed by the learned Single Judge of this Court in S.B.Civil Writ Petition No.6899/2006 by which the appellant- petitioner's writ petition to challenge the order of the learned District & Sessions Judge, Bikaner dated 10.11.2006( Annex.4) was dismissed. The appellant was elected Sarpanch of the Gram D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 2 Panchayat, Jhajhu, in the election held on 31.1.2005 by margin of six votes. The respondent no.3 submitted election petition under Section 80 of the Rajasthan Panchayat Raj (Election) Rules, 1994 before the court of District & Sessions Judge, Bikaner to challenge the election of the appellant. The appellant submitted reply in the election petition and raised a ground that the election petition has no material facts and, therefore, the election petition is liable to be dismissed without proceeding with the trial of the election petition. The appellant also prayed for striking of part of the pleading from the election petition, pleaded by respondent no.3, on the basis of objection of the appellant. Issue no.3 was framed by the trial court to the effect whether the facts pleaded in para 5(a) to 5(l) are absolutely vague and material particulars have not been pleaded, therefore, no cause of action accrued for submitting the election petition and, therefore, the election petition deserves to be dismissed. The issue was decided by the trial court as preliminary issue, obviously with the consent of both the parties. The trial court by impugned order dated 10.11.2006 rejected the appellant's contention and held that the facts pleaded in para 5(a) to 5(l) are neither vague nor lacks material particulars and decided issue no.3 against the D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 3 appellant. The trial court's said order dated 10.11.2006 was challenged by preferring S.B.Civil Writ Petition No.6899/06 which has been dismissed by the learned Single Judge by detail order dated 20.5.2008. Hence this appeal has been preferred by the appellant-petitioner. The learned counsel for the petitioner heavily relied upon the judgment of this Court delivered in the case of Smt. Manju Sharma v. Sui Sharma and anr. (1996(3) WLC(Raj.) 161) and the judgment of this Court delivered in the case of Chetan Das vs. The District Judge, Bhilwara & ors. (S.B.Civil Writ Petition No.892/2002 decided on 20.4.2005 (by me) as well as the judgments of the Hon'ble Apex Court delivered in the case of Hari Shanker Jain v. Sonia Gandhi ((2001) 8 SCC 233) and the earlier judgment of the Hon'ble Apex Court delivered in the case of Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253). According to the learned counsel for the appellant, it has been held by this Court that the provisions of the Representation of People Act, 1951 and the principles embodied therein shall apply even to the petitions under the Rajasthan Panchayati Act on the basis of equity, justice and good conscience. It has been held that in the context of a charge of corrupt practice, 'material fact' would mean all the D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 4 basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he/she can succeed in that charge. According to the learned counsel for the appellant, in a case where the allegations levelled in the election petition are accepted as true without giving opportunity to the respondent then the election petition can proceed but if the plaint allegations are accepted as true and yet the election petitioner cannot get the relief then the election petition is liable to be dismissed forthwith and the elected person cannot be asked to face the trial. In this case, absolutely vague allegations have been levelled of corrupt practice and further more the allegations are not against the appellant but are against the appellant's husband. It is submitted that as per rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, the election of elected candidate can be challenged on the ground of corrupt practice, if committed by the candidate. The election of elected candidate further can be challenged when any corrupt practice was committed by any other person, other than the elected candidate himself, with the consent or connivance of the candidate with the person committing corrupt practice. In the election petition, the D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 5 election-petitioner (respondent) has not pleaded that the appellant herself has committed any corrupt practice but allegation is that the appellant's husband Manohar Singh committed corrupt practice. In the entire election petition, it has not been pleaded that Manohar Singh has committed corrupt practice with the consent or connivance of the appellant. It is also submitted that absolutely vague allegations have been levelled that the appellant's husband distributed free meals, liquor, opium,doda-post to influence the voters to vote in favour of the appellant but did not disclose to whom he served above articles. The election petitioner also pleaded that the appellant's husband distributed blankets and liquor to the Members of the SC community and gave cash to some head of the community. It is also alleged that the appellant's husband tried to instigate communal disruption and there are further allegations, but without any particulars, like taking benefit of respondent no.3, obtaining 300 votes for the appellant. We considered the submissions of the learned counsel for the appellant. In Chetan Das's case (supra), the election was challenged by the election-petitioner on the ground that the elected candidate gave birth to a child after cut-out date, D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 6 because of which he was dis-qualified to contest the election. Following the decision of the Hon'ble Apex Court delivered in the case of Azhar Hussain(supra) and the decision of the Hon'ble Supreme Court delivered in the case of Nihar Singh vs. Rao Birendra Singh ( (1970) 3 SCC 239), it has been observed that the election petitioner did not disclose the names of the children and most important fact the date on which they were born and which were material facts required to be proved for challenging the decision of the Returning Officer of rejection of the nomination paper of the non-petitioner. In said case, it was found that the petitioner submitted copy of his nomination paper which he submitted before the Returning Officer but that was not made part of the election petition. The non-petitioner placed on record of the writ petition, a copy of the nomination paper wherein names of petitioner's three children with date of birth were mentioned. In said case of Chetan Das, this Court observed that “when there is decision against the election petitioner of the Returning Officer then it was the duty of the election petitioner to disclose all material particulars and facts relating to allegations against him so that he may prove that the decision of the Returning Officer, if based on facts, proceeded on D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 7 wrong facts.” It is more necessary when the particulars are in the specific knowledge of the petitioner who is challenging the decision of the Returning Officer. In that situation, this Court allowed writ petition of Chetan Das and the election petition filed by the non-petitioner was rejected under O. 7 Rule 11, CPC. So far as legal position, that failure to plead material facts is fatal to the election petition as held in the cases of Hari Shanker Jain (supra) and Azhar Hussain(supra) is concerned, there cannot be any dispute but that is a settled legal position. In this case, the trial court, after considering the legal arguments on facts, held that the pleadings are not vague nor insufficient. The learned Single Judge of this Court, in detail, considered the pleadings again and found after quoting para 5(h) that the “election petition bears all requirements, material facts and details which is specifically given by the respondent no.3 in her election petition, therefore, the learned Election Tribunal has rightly decided the issue no.3 in favour of respondent no.3 and held that the election petition is maintainable.” The learned Single Judge was of the view that the order of the trial court was in consonance with the law laid down by the Hon'ble Apex Court. D.B.Civil Special Appeal(Writ) No.652/08 Smt. Kiran Kanwar vs. The District & Sessions Judge,Bikaner & ors.. 8 After perusal of the pleadings, we are also in agreement with the view taken by the learned Single Judge and found that material particulars have been pleaded by the election petitioner. We do not find any merit in this special appeal,hence the same is hereby dismissed. ( C.M. TOTLA) ,J. (PRAKASH TATIA),J. mlt