[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL ELECTION PETITION NO. 05/2004 SANJAY GURJAR Vs. SHRI DUSHYANT SINGH & ORS. Date:10/03/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Lokesh Sharma for the petitioner. Mr. Alok Sharma for the respondent No.1. **** REPORTABLE The present election petition has been filed by petitioner Sanjay Gurjar under Section 80- A r/w Section 100(b) &(d)(ii) of the Representation of People Act, 1951 (for short 'the Act of 1951') challenging the election of respondent No.1 Shri Dushyant Singh from the Parliamentary Constituency (15) Jhalawar, result of which was declared on 13.05.2004 and respondent No.1 Shri Dushyant Singh was declared elected as Member of Parliament. 2. Brief facts of the case are that the petitioner filed his nomination papers as a candidate of Indian National Congress Party, respondent No.1 Shri Dushyant Singh filed his nomination papers as a candidate of Bhartiya Janta Party, respondent No.2 Shri Ratan Lal filed his nomination papers as a candidate of Bahujan Samaj [2] Party and the respondent No.3 Shri Jakir Hussain filed his nomination papers as an independent candidate to contest the elections of Parliament from Jhalawar Parliamentary Constituency (15). As per the election calender notified by the Election Commission, the date of polling was fixed as 05.05.2004 and the date of counting of the votes and declaration of the election result was fixed as 13.05.2004. After scrutinising the nomination papers, all the above four candidates i.e. the petitioner and respondent Nos. 1, 2 and 3 were declared eligible to contest the election from the Parliamentary Constituency of Jhalawar(15). 3. The result of the election of Jhalawar Parliamentary Constituency (15) was declared on 13.05.2004 and as per the result, the returned candidate respondent No.1 Shri Dushyant Singh was declared elected. The final result sheet was published under Rule 56 (ga) 2(ga) and the result was in the prescribed form (under Section 66 of the Representation of People Act, 1951) and as per the final result sheet, respondent No.1 Shri Dushyant Singh secured 3,03,845 votes, respondent No.2 Shri Ratan Lal secured 16,336 votes and respondent No.3 Jakir Hussain secured 25,164 votes in their favour whereas the petitioner secured 2,22,266 votes. [3] 4. The present election petition has been preferred by the petitioner on the ground that since beginning that is just after publication of the programme of election by way of notification by the Chief Election Commissioner of India, during the course of canvassing and thereafter during the course of polling on 05.05.2004 and on the date of re-polling i.e. 07.05.2004, the returned candidate respondent No.1 Shri Dushyant Singh, his election agents, his mother Smt. Vasundhara Raje Scindia, the Hon'ble Chief Minister of State of Rajasthan have adopted corrupt practices in the interest of returned candidate respondent No.1 Shri Dushyant Singh and in spite of various complaints by the petitioner, his agents, his party leaders as well as the polling agents though re-polling was ordered by the Election Commission but only for thirteen polling booths, whereas such corrupt practice was adopted by the returned candidate, his mother and his election agents at all the polling booths. 5. It is alleged that there was continuous misuse of the government machinery by the ruling Bhartiya Janta Party for canvassing of the returned candidate, who is son of the Hon'ble Chief Minister of the State of Rajsthan. It is also alleged that there were incidents of booth capturing by the Bhartiya Janta Party workers and also supplied [4] liquor to the voters just before a day of polling and about 900 bottles of liquor were recovered by the police from the factory premises belonging to Bhartiya Janta Party's leader Shri Satish Gupta. To this effect, the petitioner also made several complaints to the Chief Election Commissioner. 6. After alleging allegations of corrupt practice, the petitioner by way of the instant election petition has prayed that election of respondent No.1 Shri Dushyant Singh as Member of Parliament from the Parliamentary Constituency of Jhalawar(15) be declared illegal and void on account of corrupt and mal practices adopted in the interest of the returned candidate by returned candidate himself, his election agents, workers of Bhartiya Janta Party as they were under the influence of the mother of the returned candidate, the Hon'ble Chief Minister of the State of Rajasthan Smt. Vasundhara Raje Scindia. 7. On behalf of returned candidate (respondent No.1) Shri Dushyant Singh two applications have been filed; one under Order 6 Rule 16 and another under Order 7 Rule 11 of the Code of Civil Procedure. By way of application under Order 6 Rule 16 CPC moved on behalf of the returned candidate respondent No.1 Shri Dushyant [5] Singh, the relief has been claimed that the offending portion in paragraphs 2, 3, 3(1), 3(2), 3 (3), 3(4), 3(5), 4, 6, 7 and 8 of the election petition may kindly be struck out or in the alternative this Court may kindly direct the petitioner to suitably amend the election petition before commencement of further proceedings in the election petition filed by the petitioner. 8. In response to the application under Order 6 Rule 16 CPC, the petitioner has not filed any reply and without filing any reply the petitioner only wants to submit the legal submissions to the application under Order 6 Rule 16 CPC. 9. Another application has been moved on behalf of the returned candidate respondent No.1 under Order 7 Rule 11 CPC claiming relief to reject the election petition under Order 7 Rule 11 CPC mainly on the ground that no cause of action is made out and no triable issue arises from the pleading and as such the trial of the election petition would be only a vexatious and futile exercise. 10. In response to the aforesaid application filed on behalf of the returned candidate (respondent No.1) Shri Dushyant Singh under Order 7 [6] Rule 11 CPC, the petitioner has filed reply and the same is on record. 11. In application under Order 6 Rule 16 CPC filed by the returned candidate, it is contended that the averments made in the election petition are vague, unnecessary, frivolous and vexatious in the context of the purported cause of action on which the present election petition has been filed. 12. Learned counsel appearing for the respondent No.1 referred para 2 of the election petition wherein vague averment has been made that “since so many complaints were made regarding corrupt practices adopted in the interest of respondent No.1 as well as regarding booth capturing at various places” 13. After referring the averments made in para 2 of the election petition, learned counsel for the respondent No.1 submits that the aforesaid averments are vague and bald, simply a mere mechanical repetition of the language without giving details of the allegations and are frivolous, vexatious and deserve to be struck out. 14. Similarly in para 3 of the election petition, the averments are made that “during the [7] course of canvassing and thereafter during the course of polling on 5th May, 2004 and on the date of re-polling on 7th May, 2004, the returned candidate Shri Dushyant Singh, his election agent and his mother Smt. Vasundhara Raje Scindia, Hon'ble Chief Minister of Rajasthan, adopted corrupt practices in the interest of the returned candidate.” 15. After quoting the allegations alleged in para 3 of the election petition, the learned counsel for the applicant/respondent submits that the aforesaid averments at the instance of the petitioner is again very generalised in character and vague made with the sole purpose of embarrassing the applicant/respondent. The reference of Smt. Vasundhara Rajeh Scindia, the Hon'ble Chief Minister of the State of Rajasthan is deliberately made without being necessary to the laying of a challenge to the election of the returned candidate under Section 100(b) and (d)(ii) of the Act of 1951, which pertain to the corrupt practice alleged and attributed to the returned candidate, the election agent and the acts of other agents with the consent of the returned candidate and not to mother of the returned candidate even if a Chief Minister and, therefore, being vague and frivolous allegations alleged in para 3 of the [8] election petition deserve to be struck out. 16. Further allegations made in para 3 of the election petition are that “corrupt practice was adopted by them i.e. by the returned candidate, his election agent and his mother at all election booths”, similar to the averments made earlier and the said averment is vague and vexatious and wholly frivolous made not so much to support the charge of corrupt practice or provide the basis/foundation of such a charge but with the sole purpose of creating sensationalism and scandalizing this Court. The allegations aforesaid do not supply a ground or the foundation of the election petition in accordance with law and, therefore, the same deserves to be struck out. 17. Further in para 3(1) of the election petition, it has been averred that “continuous use of government machinery by the ruling B.J.P. party for canvassing of the returned candidate who is the son of the Chief Minister of Rajasthan.” This averment is also without material particulars, again wholly scandalous in nature and liable to be struck out. Similar averments are also made in para 3(2) and 3(3) of the election petition. 18. Learned counsel for the applicant/ respondent also referred the averments made in para [9] 3(4) of the election petition, wherein it has been alleged that the returned candidate, his elected agent and Smt. Vasundhara Raje Scindia, Chief Minister, threatened and beaten the Presiding Officer and Administrative Officers trying to conduct free and fare election of Jhalawar Parliamentary Constituency, are wholly false, for neither the polling booth nor the Presiding Officer nor the Administrative Officers allegedly threatened or belaboured at the instance of the returned candidate. 19. Learned counsel Mr. Alok Sharma also referred para 3(5) of the election petition, wherein the petitioner levelled allegation regarding recovery of 900 bottles of liquor from the factory premises of an alleged B.J.P. leader Shri Satish Gupta, which do not constitute a cause of action for laying a challenge to an election petition under Section 100(b) and 100(d)(ii) of the Act of 1951. 20. He also referred para 4 of the election petition and submits that the allegations made in para 4 of the election petition are false as they are even otherwise irrelevant. 21. Further referred paras 6, 7 and 8 of the [10] election petition. In para 6 of the election petition, it has been averred that it was obligatory on part of the Presiding Officer to allow voters have their documents verified and only thereafter to permit voting by them. It has been stated that on the failure of the voters to identify themselves with reference to their driving licence, ration card, passport, PAN card, identity card, Below Poverty Line card, Jamabandi/land pass book and domicile certificate issued by the competent authority, they should not have been allowed to cast their votes. 22. The averments made in para 6 of the election petition are contrary to the Circular dated 12.04.2004 in issue itself and even otherwise fly in the face of the statutory right on an elector conferred under Section 62 of the Act of 1951, which provides statutory right of a voter to cast his vote. 23. Further in para 7 of the election petition, it has been averred that the Presiding Officers were under the pressure of the Chief Minister and committed “so many irregularities”. This averment is again generalised, non-specific, completely vague and without detail in material particulars to constitute a cause of action to lay [11] a challenge to an election petition on the ground of corrupt practices as alleged. 24. Para 8 of the election petition has also been referred, wherein it has been averred that corrupt practices were adopted by the District Authorities of District Jhalawar and workers of the B.J.P. party under the influence of the Chief Minister and again these allegations are generalised without having any basis and foundation. 25. After referring the pleadings made in the election petition filed by the petitioner, the learned counsel appearing for the applicant/ respondent in support of his application filed under Order 6 Rule 16 CPC, has prayed that offending portion in paragraphs 2, 3, 3(1), 3(2), 3 (3), 3(4), 3(5), 4, 6, 7 and 8 of the election petition be struck out by this Court or in the alternative this Court may direct the petitioner to suitably amend the election petition before commencement of further proceedings. 26. Another application under Order 7 Rule 11 CPC has been filed on behalf of the returned candidate respondent No.1 Shri Dushyant Singh, wherein it has been stated that under Section 80 of [12] the Act of 1951, no election is to be called into question except by an election petition presented in accordance with the provisions of Part VI of the Act of 1951. Further Section 83 of the Act of 1951 stipulates what shall be the contents of the election petition and clause (a) of sub-section (1) provides that the petition shall contain a concise statement of material facts on which the petitioner relies. Clause (b) of the said sub-section (1) provides that the 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 place of the commission of each such practice. The proviso to sub-section (1) of Section 83 of the Act of 1951 states that where the petitioner alleges any corrupt practice the petition shall necessarily be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. Corrupt practice is defined in Section 123 Part VII of the Act of 1951 and inter-alia includes various practice deemed to be corrupt for the purpose of the Act of 1951. 27. It is further submitted that the ground for declaring the election of the applicant/ [13] respondent as void as set up in the petition is one under clause (b) of sub-section (1) of Section 100 of the Act of 1951 and the other under sub-clause (ii) of clause (d) of sub-section (1) of Section 100 of the Act of 1951. It is further submitted that upon reading Section 83 with Section 100 as also Section 123 and 135-A of the Act of 1951 together, it is clear that if the election petition filed does not satisfy the requirement of the statutory provision, the whole election petition is liable for being rejected on the ground of not disclosing a cause of action. It is, therefore, imperative that to be maintainable in law the election petition must aver that one or more of the grounds contained in Section 100 have been made out on the basis of material fact and only in such an eventuality the petition would be maintainable and entitled to be put to trial. 28. After referring the provisions of Sections 80 and 83 of the Act of 1951, the learned counsel for the applicant/respondent submits that the election petition as filed does not comply with the provisions of the Act of 1951 in more than one ways as in the terms of clause (b) of sub-section (1) of Section 83 of the Act of 1951, the mandatory requirement is of setting forth full particulars of the corrupt practice alleged including a full [14] statement of the names of th parties alleged to have committed such corrupt practice and the date and place of commission of such corrupt practice have not been laid out in the election petition. Thus, the election petition is palpably vague and mechanically and repetitively invokes the language of the statute under certain sub-sections of Section 123 of the Act of 1951 without, in any manner whatsoever, setting forth the full particulars of the corrupt practice alleged as mandated by law. 29. Learned counsel for the applicant/ respondent further submits that even otherwise the petition as laid is liable to be rejected for an ex-facie non-compliance with the proviso to sub- section (1) of Section 83 of the Act of 1951 inasmuch as the petition has not been accompanied by an affidavit prescribed under Rule 94-A of the Conduct of Election Rules, 1961 (for short 'the Rules of 1961') in the format provided for in form 25 of the forms appended to the Rules of 1961. 30. With regard to the meaning of “corrupt practice” under the Act of 1951, learned counsel Mr. Alok Sharma, appearing for the applicant/ respondent submits that the petitioner has not set out any material fact and particulars which would [15] provide the basis foundation for the ground of any corrupt practice alleged against the applicant/ respondent, his agent or in any event in terms of his consent. 31. Further, as per the mandatory provisions of Section 83(1)(a) of the Act of 1951, it is obligatory and mandatory upon the petitioner to specifically state and plead all facts essential to his cause of action as sought to be made out. In fact, clause (b) of sub-section (1) of Section 83 of the Act of 1951 imposes a heavier duty on the petitioner to set forth full particulars of the corrupt practice allegation including the details thereof. 32. On behalf of the applicant/respondent, it is further submitted that the issue of false identification certificates does not constitute a ground for laying the petition under Section 100(1) (b) and Section 100(1)(d)(ii) of the Act of 1951. It is submitted that it has also not been pleaded that the false identification certificates were issued with the consent of the applicant/ respondent or that in any event that the so called holders of false certificates were to the benefit of the applicant/respondent. [16] 33. It is also submitted on behalf of the applicant/respondent that the allegations of influence are again bald and mechanical and the essential facts to sustain a ground of undue influence have not been set out in the election petition. The essential particulars to make out a case of corrupt practice under Section 123(1) of the Act of 1951 are not even remotely made out. 34. Learned counsel for the applicant/ respondent in support of his application under Order 7 Rule 11 CPC has submitted that no cause of action has been made out and no triable issue arises from the pleadings and as such the trial of the election petition would only be a vexatious and futile exercise and, therefore, prayed that while allowing the application under Order 7 Rule 11 CPC moved on behalf of the applicant/respondent, the election petition filed by the petitioner be rejected. 35. In support of both the applications i.e. application under Order 6 Rule 16 CPC and application under Order 7 Rule 11 CPC moved on behalf of applicant/respondent No.1 Dushyant Singh, learned counsel Mr. Alok Sharma referred Sections 81 and 83 of the Act of 1951 and after referring the aforesaid provisions, he submits that [17] the cause of action is a term of art and has been described by the Hon'ble Supreme Court as also by this Court as a concise statement of material facts as also full particulars (where corrupt practice at an election is alleged) on which the petitioner relies for making out corrupt practice as a ground for setting aside an election. A cause of action challenging an election on the ground of corrupt practice requires as full a statement as possible of the names of the parties alleged to have committed the corrupt practice and the details, date and place of the commission of such corrupt practice. 36. In support of his submissions, the learned counsel for the applicant/respondent Mr. Alok Sharma placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Daulat Ram Chauhan Vs. Anand Sharma, (1984) 2 SCC 64, more particularly para Nos. 18, 19 and 20 of the judgment which are reproduced hereunder:- “18. We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other serious consequences like debarring the candidate concerned from contesting a future election for a period of six years, the allegations must be very strongly and narrowly construed to the very spirit and letter of the law. In other words, in order to constitute corrupt [18] practices, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings:- (i) Direct and detailed nature of corrupt practice as defined in the Act; (ii) Details of every important particular must be stated giving the time, place, names of persons, use of words and expression etc.; (iii) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself (b) his authorized election agent or any other person with this express or implied consent. 19. A person may, due to sympathy or on his own, support the candidature of particular candidate but unless a close and direct nexus is provided between the act of the person and the consent given to him by the candidate or his election agent, the same would not amount to a pleading of corrupt practice as contemplated by law. It cannot be left to time, chance or conjecture for the court to draw an inference by adopting in involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt practice will irresistibly admit of no doubt or qualm. 20. As a logical consequence of the principles enunciated by us, it follows that where the allegation of fraudulent practice is open to two equal possible inferences, the pleading of corrupt practice must fail. For instance, A, or in this case Sodd or Batish, joined or participated or was present in an election rally or crown and may have shouted slogans on his own without taking the consent of the candidate concerned, this would not be a [19] corrupt practice within the meaning of Section 123(2) because the element of consent is wholly wanting. 37. The petitioner invokes clause (b) of sub- section (1) of Section 100 as well as sub-clause (ii) of clause(d) of sub-section (1) of Section 100 of the Act of 1951 for laying a challenge to the election of the applicant respondent to the Jhalawar Parliamentary Constituency. The petition as filed does not meet the requirement of law and is liable for dismissal at the threshold for not disclosing a cause of action as held by the Hon'ble Supreme Court that election law should be strictly construed and election petition is not to be tried only based on common principle of justice and notion of equity. The Court has further held that the law provides procedural safeguard against frivolous and vexatious allegations. Particular of charge must be precisely and clearly stated in the petitioner. 38. Reliance has been placed by the learned counsel for the applicant/respondent on the judgment rendered by the Hon'ble Supreme Court in the case of F.A. Sapa Vs. Singora, (1991) 3 SCC 375, more particularly para Nos. 17 and 29 which read as under:- “17. ..... But while there [20] is sufficient justification for the law to be harsh with those who indulge in such practices, there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate. It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place, of its commission. A simple verification was considered insufficient and, therefore, the need for an affidavit in the prescribed form. These procedural precautions are intended to ensure