1 IN TH HIGH COURT OF BOMBAY AT GOA APPLICATIONS IN ELECTION PETITIOIN NO. 5/2007 & 16/2007 IN ELECTION PETITION NO. 1 OF 2007 APPLICATION IN ELECTION PETITIOIN NO. 5/2007 Anil Vasudev Salgaoncar S/o Vasudev Salgaoncar, 66 years old, married, businessman, residing at H.No. 4311, Housing Board, Gogol, Margao, Salcete-Goa. .... Applicant V/s Naresh Kushali Shigaonkar S/o. Late Kushali Shigaoncar, 53 years, married, occupation service, Indian National, residing at H.No. 288, Bazar Vadda, Colem, Sanguem Taluka, Post Colem, 403 410. .... Respondent Mr. A.N.S. Nadkarni & Mr. H.D. Naik, Advocates for the Applicant. Mr. J.E. Coelho Pereira, Senior Advocate with Mr. S. Karpe, Advocate for the Respondent. AND APPLICATION IN ELECTION PETITIOIN NO. 16/2007 Naresh Kushali Shigaonkar S/o. Late Kushali Shigaoncar, 53 years, married, occupation service, Indian National, residing at H.No. 288, Bazar Vadda, Colem, Sanguem Taluka, Post Colem, 403 410. .... Applicant V/s Anil Vasudev Salgaoncar S/o Vasudev Salgaoncar, 66 years old, married, businessman, residing at H.No. 4311, Housing Board, Gogol, Margao, Salcete-Goa. .... Respondent 2 Mr. J.E. Coelho Pereira, Senior Advocate with Mr. S. Karpe, Advocate for the Applicant. Mr. A.N.S. Nadkarni & Mr. H.D. Naik, Advocates for the Respondent. CORAM : N.A. BRITTO, J. DATE : 4th JULY, 2008 ORDER : Preliminary objections taken on behalf of the returned candidate, and preliminary issues framed in terms thereof, are being disposed of by this order. 2. The petitioner is an elector and the respondent no.1 is the returned candidate at the elections held on 2/06/2007 to 35-Sanvordem Assembly Constituency in the State of Goa. The process of the said elections started on 8/05/2007 and 15/05/2007 was the last date fixed for filing nominations and the date of withdrawal of the said nomination was 18/05/2007. 3. The petitioner who is an elector in the said Constituency has filed the present petition on three grounds which could be summarized as follows: (i) That the returned candidate indulged in corrupt practices by illegally getting 13 bore wells constructed in 7 villages of the Constituency and secured assurances from the voters which materially affected the results of the elections. (ii) That the returned candidate committed a corrupt practice by 3 purchasing 5 ambulances to be placed at the disposal of the 5 villages, named in the petition, as a result of which the voters voted for the returned candidate, which materially affected the results of the elections. (iii) That the returned candidate incurred expenditure at the time of elections exceeding Rs. 5 lacs in contravention of Section 77 of the RP Act, 1951. 4. At the time of hearing, on behalf of the respondent, it has been submitted that: (a) The petition does not disclose material facts; (b) No affidavit in “Form 25” as required under Rule 94-A of the Conduct of Elections Rules has been filed; (c) The ambulances were purchased in March, 2007 and therefore it would not amount to a corrupt practice; and (d) The petition was filed beyond the period of limitation. 5. Going by the reverse order, the examination form prepared by the Registry dated 21/07/2007 shows that the elections were held on 2/06/2007 and the results were declared on 5/06/2007 and the election petition was filed on 20/07/2007 and, therefore, well in time. Learned Counsel appearing on behalf of the respondent/returned candidate has not pursued his objections further verifying this position. 4 6. Although there is an averment in the petition that the ambulances valued at about Rs. 12,50,000/- were purchased on or about 31/03/2007, in the name of respondent's mining company 'M/s. Salgaoncars Mining Industries Pvt. Ltd.', there is also an averment in para 23 of the petition that the said ambulances were put at the disposal of the villagers after the elections were declared and the respondent had filed his nomination for the said election. What would be material would be the date when the said ambulances were given or when the actual corrupt practice was committed and not when they were purchased. In the light of these allegations, the observations of the Apex Court in Mohan Rawale V/s. Damodar Tatyaba @ Dadasaheb & Ors. (1994 (2) SCC 392) to the effect that allegations of corrupt practice relating to the period anterior to the date of the candidate's nomination would not constitute allegations of corrupt practice and therefore must be excluded from consideration, would not be applicable to the facts of the case at hand. 7. As regards non-compliance of the proviso below Sub-section (1) of Section 83 of the Representation of the People's Act, 1951 read with Rule 94- A of the Conduct of Elections Rules, 1961, the same also needs to be rejected. The petitioner has filed such an affidavit and the same is at page 117 of the petition. Though the petitioner has not typed on the said affidavit “Form 25”, the said affidavit complies with the requirements, or in any event, 5 substantially complies with the requirements of the said Rule and the proviso to Section 83 of the Act. Learned Counsel on behalf of the respondent has also tried to pick up a hole in the verification of the said affidavit and with reference to para 9 of the petition, wherein the petitioner, inter alia, has stated that “by complaint dated 18/05/2007 made to the District Electoral Officer in writing, the election agent of the petitioner called for investigation into electoral mal-practices committed by the returned candidate”. That averment has been verified as true to the petitioner's knowledge, and, I fail to understand as to why the petitioner could not have done so because what the petitioner’s election agent did could also have been to the knowledge of the petitioner. In any event, it must be stated that the Apex Court in Vijay Laxmi Sadho (Dr.) V/s. Jagdish (2001(2) SCC 247) referred to another three Judge Bench decision in the case of F.A. Sapa V/s. Singora (1991 (3) SCC 375) and observed that the requirement of filing an affidavit along with election petition in the prescribed form, in support of the allegation of corrupt practice is contained in Section 83(1) of the Act and an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non- compliance with provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly defective affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to sue to such a case. 6 8. Now, going to the objections that the petition does not disclose material facts and material particulars and therefore it should be rejected in terms of Order VII, Rule 11, CPC, it may be stated that both under Order VI Rule 6, CPC which has been made applicable to the conduct of Election Petitions, as well as clause (a) of sub-section (1) of Section 83 of the Act, a pleading is required to contain and contain only a statement in a concise form of material facts on which the petitioner relies in support of his claim. Sub- rule (2) of Order VI, CPC requires that every pleading shall, where necessary be divided into paragraphs, numbered consecutively, each allegation being so far as is convenient, contained in a separate paragraph. The Apex Court in Mohan Rawale (supra) has referred to the expressions “grounds”, “material facts” and “full particulars” and referring to the “grounds”, the Apex Court has stated that it could be taken as a foundation or basis on which the petition is based to seek relief against a respondent. What are “material facts” and “full particulars” has been dealt with by the Apex Court in various decisions. Counsel on behalf of the returned candidate has placed reliance on the case of Azhar Hussain V/s. Rajiv Gandhi (1986 (Supp) SCC 315) and Harkirat Singh V/s. Amrinder Singh (2005 (13) SCC 511) while the learned Senior Counsel on behalf of the petitioner has placed reliance on Virender Nath Gautam V/s. Satpal Singh & Ors. (2007 (3) SCC 617). The Apex Court in the latest decision cited has reiterated that the expression “material facts” has neither been defined in the Act, nor in the Code, but has stated that it may be 7 said to be those facts upon which a party relies for his claim or defence. In other words, “material facts” are facts upon which the plaintiff’s cause of action or the defendant's defence depends. What “particulars” could be said to be “material facts” would depend upon the facts of each case and no Rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. “Particulars”, on the other hand, are details in support of material facts pleaded by the party. 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. “Particulars” thus ensure conduct of fair trial and would not take the opposite party by surprise. The submission of the respondents with the dates as to when the wells were constructed or as to who constructed them on behalf of the returned candidate are but “particulars” and not “material facts”. As far as “material particulars” are concerned, the Apex Court stated that the petition can be permitted to be amended or amplified under Section 86 of the Act. In H.D. Revanna V/s. G. Puttaswamy Gowda & Ors. (AIR 1999 SC 768), the Apex Court 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 will he be permitted to amend the petition after 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 8 that particulars are necessary, an opportunity should be given to the petitioner to amend the petition and include the particulars.” In D. Ramachandran V/s. R.V. Janakiraman (1999 (3) SCC 267), the Apex Court has stated that: “It was 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 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 triable issue as such. The Court cannot be probe into the facts on the basis of the controversy raised in the counter.” As stated by the Apex Court in V. Narayanaswamy V/s. C.P. Thiruna Vukkarasu (2000 (2) SCC 294), the petition has to be considered as a whole and the Court is not expected to dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. 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. It is to be noted that a pleading is not an expression of art or science but an expression through words to place a fact or law of one's case for a relief and must be gathered by reading the plaint or the petition as a whole, but that does not distract one from performing his or her obligations as required under a statute and what is to be seen is the pith and substance of the plea. The averments of para 8 9 disclose that as per the petitioner, the returned candidate has in the course of election, in order to win over votes and induce the electors from aforesaid villages to vote for him, indulged in corrupt practice by doing the acts mentioned therein. After narrating about the water scarcity, in some of the villages of the said Constituency, the petitioner averred that in order to lure the votes of the voters of the said villages, the returned candidate with the intent to secure their votes illegally got 13 bore wells constructed at his own costs in the said 7 villages of his Constituency and further stated that he secured the assurance from the voters of the said villages that on constructing the said wells, they would vote for him and in fact their assurance to that effect was obtained by the returned candidate and also by his election agent and by the son of the returned candidate namely Samir Salgaoncar, who along with returned candidate conducted the election campaign of the returned candidate. In para 9, the petitioner has averred that on 18th May at about 12 noon in village Sanvordem there were about 10 laboureres and two vehicles involved in boring the well. In para 17, the petitioner averred that the costs of the said wells was borne by the returned candidate through his business concern namely Salgaoncar Mining Industries. The places where the bore wells have been dug are stated in para 19. As to when they were constructed, the averments are in para 20 i.e. during the period of the elections of the returned candidate. Regarding the ambulances, the averments are found in para 14 and 23 and other paragraphs. 10 9. The petition when read as a whole thus disclose that it has material facts stated and regarding which triable issues are also framed and therefore it cannot be rejected at the preliminary stage. If further particulars are required the Respondent is always free to seek the same from the petitioner. Particulars are nothing but details and what details the respondent requires, the respondent is in a better position to know. 10. Learned Counsel on behalf of the respondent next refers to the definition of “corrupt practices” in Section 123(1)(A)(b) and submits that bribery contemplates bribing only a voter and not a group of voters. Learned Counsel further submits that doing development works for the constituency would not amount to bribery and in this context has placed reliance on the case of Dhartipakar Madan Lal Agarwal V/s. Shri Rajiv Gandhi (AIR 1987 SC 1577). That was a case where there was an allegation in the petition that prior to the declaration of election and also during the election period, workers of Rajiv Gandhi with his consent speeded up a construction work of Amethi Railway Station and this was done only to persuade the voters to cast their votes in his favour and it was contended that, that was the gift to the voters of the Constituency. The Apex Court held that allegations merely disclose that Amethi Railway Station was being constructed and during the elections its work was speeded up which persuaded the workers to cast their votes in favour of the returned candidate. The Apex Court observed that if 11 some developmental activity was carried on in the constituency and if it was completed during the election period it could not amount to any gift or promise to the voters. The fact situation in that case was totally different. The allegations in relation to the fact situation are totally different in this case and whether the said allegations to more than one voter i.e. sizeable section of the electorate, would amount to a bribery, is a triable issue, which can only be decided at the trial and cannot be decided at this stage. 11. In the light of above, the preliminary objections/issues are decided against the returned candidate. Petition to proceed for trial. List of witnesses, if not filed, be filed within a period of two weeks by the respective parties. N.A. BRITTO, J. NH/-