SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO.5 OF 2008 IN ELECTION PETITION NO.8 OF 2004 Shri Dilip Gangadhar Sonpal, Adult, Occu.Social Service, R/o.Agalgaon Road, Barshi, District Solapur. ...Applicant Versus Shri.Rajendra Vithal Raut, Adult, R/o.3809, Raut Chawl, Barshi, District Solapur. ...Respondent ...... Mr.B.D.Joshi for Applicant. Mr.M.Subramaniam for Respondent/Election Petitioner. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 28, 2008. AUGUST 28, 2008. AUGUST 28, 2008. ORDER : ORDER : ORDER : 1. By this Application, the Respondent prays that in view of Sections 86 r/w 82(b) of the Representation of the People Act, 1951, this Election Petition be dismissed. The essence of the stand taken by the Respondent is that the Petitioner has failed to implead Shri Arun : 2 : Marutirao Nagane as Respondent in the Election Petition even though the said Arun Nagane was a candidate at the election and that allegations of corrupt practice have been made against him in the Election Petition. 2. To buttress this argument, reliance is placed on averments in Paragraph 6(A), wherein it is asserted that on 10th October 2004 in a public meeting which was arranged by the Respondent at Village Devgaon, the said Shri Arun Nagane participated and was seen on the stage at the time of meeting along with several other party workers of the Respondent named in the said paragraph. In the said paragraph, the Petitioner has then referred to the events as unfolded. In that, the Respondent after completing his pad-yatra, arrived on the stage when the speech of one of the party worker on the dais Shri Kolekar was in progress. The details about the utterances of Shri Kolekar has been mentioned. It is then stated that in the presence of Respondent, Shri Kolekar gave threat that Nationalist Congress Party candidate would also be dead on the platform of Pune Mumbai Railway : 3 : Station; and other matters spoken by Shri Kolekar. The Petitioner has then stated that some party workers of Nationalist Congress Party objected to the said speech. Further some of the persons sitting on the dais raised counter objections. It is then stated that the police authorities present for the bandobast at the time of meeting namely Police Sub-Inspector Shri Nivrutti Gena Kasabe and Police Constables named therein tried to calm down the tempers on both the sides. However, the situation escalated and stones were thrown by the two groups on each other. The Petitioner has then referred to other events and at the end of the paragraph, mentioned that a criminal case has been registered at Pangari Police Station in respect of the said episode, being C.R.No.85 of 2004 for offences punishable under Sections 147, 148, 149, 307, 326, 336, 337, 338, 452, 427, 171 (G), 504, 506, 109 of the Indian Penal Code, under Section 135 of the Bombay Police Act and under Section 25(1), 127(1)(2) and Section 144(1)(2)(3) of the Indian Arms Act, 1959 against the Respondent and several of his supporters. : 4 : 3. Reference is also made to paragraph 6(B) of the Petition where the Petitioner has stated about the utterances of Shri Kolekar in his speech which statements of facts were in the nature of threats issued to the Petitioner and his supporters which came within the mischief of Proviso (a)(i) of Section 123(2) of the Act of 1951. It is then stated that the Respondent too made provocative statement in order to spread fear amongst the Petitioner and his supporters and other voters in the locality for their life and limb. On this basis, the Petitioner has asserted that direct and/or indirect interference or attempt to interfere on the part of the Respondent and/or his agents and/or other workers, activists with the consent of the Respondent with the free exercise of the electoral right of the Petitioner, his agents, workers, activists and other voters of the said locality, which conduct on the part of the Respondent and the speakers in the said meeting was violative of clause I(1), (2), (4) and (7) of the Model Code of Conduct. On that basis, the Petitioner asserts that the result of the election insofar as it concerns the Respondent has been : 5 : materially affected by the corrupt practice committed by the Respondent himself or his agents or workers with his express consent. 4. Reliance is then placed on Paragraph 8 of the Petition wherein the Petitioner has stated that in the event, this Hon’ble Court comes to the conclusion that the named and unnamed persons have committed the above mentioned corrupt practice without the consent of the Respondent, then it is the Petitioner’s case that the said corrupt practice was committed by the named and unnamed agents in the interest of the Respondent which has materially affected the result of the said election insofar as it concerns the Respondent. 5. The Respondent has then referred to the affidavit at page 224 of the compilation dated 30th November 2004, in particular, paragraph (1) thereof, which reads thus: "1. I have filed the above Election Petition for voiding the election result of 61, Vasai Legislative Assembly Election as declared on 16-10-2004 in favour of the Respondent under section 80 of the : 6 : Representation of People Act,1951 under sections 100(1)(b), 100(1)(d)(ii) and 100(1)(d)(iv) of the said Act since the Respondent and his named and unnamed agents have committed corrupt practices and violated the provisions of law, more particularly set out in the body of this Election Petition." 6. Relying on the above said averments in the Petition, it was vehemently argued that since Shri Arun Nagane was indisputably a candidate at the election, who however subsequently withdrew his candidature and has been named in the Petition, it was imperative to implead said Shri Arun Nagane in the Election Petition. In absence whereof, the Election Petition will have to be necessarily dismissed as per the mandate of Section 86 r/w 82(b) of the Act of 1951. 7. It is not necessary for us to dwell upon the issue as to whether Shri Arun Nagane continued to be a candidate inspite of withdrawal of his candidature at a latter point during the election. It is common ground that Shri Arun Nagane had filed his nomination and was duly nominated candidate who later on withdrew his nomination. Nevertheless, he : 7 : continued to be candidate in the election (see Mohan Raj vs. Surendra Kumar Taparia & Ors. Mohan Raj vs. Surendra Kumar Taparia & Ors. Mohan Raj vs. Surendra Kumar Taparia & Ors. reported in AIR 1969 SC 677). reported in AIR 1969 SC 677). reported in AIR 1969 SC 677). 8. On analysing the averments referred to in Paragraphs 6(A), 6(B) and 8 of the Election Petition and Paragraph (1) of the affidavit dated 30th November 2004 or for that matter, reading the Petition as a whole, it is noticed that except the fact that Shri Arun Nagane was seen present on the dais on 10th October 2004, when the public meeting arranged by the Respondent was in progress, there is no other allegation against said Shri Arun Nagane. That allegation, per se, by no standards, would attract the charge of any corrupt practice committed by Shri Arun Nagane himself. In absence of "allegations of any corrupt practice" against Shri Arun Nagane, it is unfathomable as to how the Petition would suffer from non-compliance of Section 82(b) of the Act of 1951, thus, inviting dismissal under Section 86 of the Act. In that, Section 82(b) postulates that any other candidate against whom allegations of any corrupt practice are made in the Petition. The Legislature in its : 8 : wisdom has provided that if there are allegations of any corrupt practice against any other candidate other than the returned candidate in the Petition itself, it is imperative to name such other candidate as Respondent in the Election Petition. 9. As aforesaid, the requirement of Section 82(b) is that there should be clear allegation against any other candidate himself having committed any corrupt practice in the Petition itself. As mentioned earlier, there is no act attributed to Shri Arun Nagane which would constitute commission of corrupt practice by Shri Arun Nagane himself, expressly mentioned in the Election Petition. In contradistinction, the Election Petition specifically refers to the act of Shri Kolekar, which according to the Petitioner would constitute corrupt practice and that has been spelt out in the Election Petition itself. In other words, there is allegation against other workers or agents of the Respondent of having committed corrupt practice but there is no such allegation against Shri Arun Nagane in the entire Election Petition or the affidavit on which : 9 : reliance was placed by the Respondent, except the fact that he was seen present on the stage along with others at the public meeting on 10th October 2004. 10. To get over this position, Counsel for the Respondent would contend that in Paragraph 6(A), it is clearly mentioned that with regard to the incident which occurred on 10th October 2004, criminal case has been registered. Besides, copy of the said F.I.R. has been annexed as Exhibit ‘B’ to the Petition which reveals that Shri Arun Nagane is one of the named accused charged with the offence of forming and being part of unlawful assembly which had indulged in the commission of offences referred to therein. 11. The fact that the said Shri Arun Nagane has been named as one of the accused in the criminal case with regard to incident of 10th October 2004, by itself, would not attract the requirement of Section 82(b) unless the Petitioner was to specifically make allegations against Shri Arun Nagane about the acts committed by him which : 10 : would constitute corrupt practice. Merely because he was seen on the dais at the relevant time, cannot be the basis to assume that there are allegations against him of having committed corrupt practice in the Election Petition as such. A priori, the question of impleading him as Respondent in the Election Petition, does not arise. To get over the abovesaid view, the Respondent has pressed into service decisions of the Apex Court in the case of U.S. Sasidharan vs. U.S. Sasidharan vs. U.S. Sasidharan vs. K.Karunakaran & Anr. reported in AIR 1990 SC 924 K.Karunakaran & Anr. reported in AIR 1990 SC 924 K.Karunakaran & Anr. reported in AIR 1990 SC 924 and M.Kamalam vs. Dr.V.A.Syed Mohammed reported in and M.Kamalam vs. Dr.V.A.Syed Mohammed reported in and M.Kamalam vs. Dr.V.A.Syed Mohammed reported in AIR 1978 SC 840. AIR 1978 SC 840. AIR 1978 SC 840. In the first place, these decisions are in the context of issue as to what is a true copy of the Petition within the meaning of Section 81 r/w Section 83 of the Act of 1951. It is in that context, the Apex Court has taken the view that if the contents of the document has not been reproduced in the Election Petition, then it would form an integral part of the Election Petition and for which reason, copy thereof must be supplied to the Respondent along with the Election Petition. The Apex Court in that context has observed that the material facts may be contained : 11 : in a document and the Election Petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. 12. To my mind, the fact that reference is made to the document (FIR) would not satisfy the requirement of "allegations of corrupt practice in the Petition" as envisaged by Section 82(b) of the Act. The expression "allegations" occurring in Section 82(b) of the Act of 1951 as understood in common parlance, and in particular, defined in Black’s Law Dictionary, would read as follows: "Allegation Allegation Allegation: The act of declaring something to be true, something declared or asserted as a matter of fact, esp. in a legal pleading; a party’s formal statement of a factual matter as being true or provable, without its having yet been proved." . It will be useful to refer to the meaning of expression "Petition" as given in the Black’s Law Dictionary, which reads thus: "Petition-1. A formal written request presented to a court or other official body." : 12 : 13. The allegation should necessarily be found in the legal pleading (Petition). The Petition alone can be treated as legal pleading. The fact that the document is appended to the Petition and the contents thereof would become part of the Election Petition by reference, does not do away with the requirement of assertion or allegation in the Petition to be filed by the Petitioner. It is well established position that the trial of an Election Petition is considered to be a quasi criminal action. In such a proceeding especially when allegation of comission of corrupt practice has been averred, the Petitioner has to articulate the charge against the Respondent which alone can be tried during the trial. In such a trial, the parties are free to produce the evidence in the context of the allegations or the case made out in the Petition. Any amount of evidence adduced on matter other than the allegation contained in the Petition is of no consequence. Applying this principle, it necessarily follows that in the fact situation of the present case, in absence of allegation of commission of acts constituting : 13 : corrupt practice against Shri Arun Nagane in the Petition, the question of applying Section 82(b) of the Act of 1951 does not arise. 14. Counsel for the Respondent had relied on the recent decision of the Apex Court in the case of Patangrao Kadam vs. Prithviraj Sayajirao Yadav Patangrao Kadam vs. Prithviraj Sayajirao Yadav Patangrao Kadam vs. Prithviraj Sayajirao Yadav Deshmukh & Ors. reported in (2001) 3 SCC 594. Deshmukh & Ors. reported in (2001) 3 SCC 594. Deshmukh & Ors. reported in (2001) 3 SCC 594. In that case, there was clear allegation against the other candidate (Shri Sampatrao Chavan), referring to his acts which constituted corrupt practice, as can be discerned from the contents of paragraph 17 of the reported Judgment. The Apex Court therefore proceeded to hold that corrupt practice was alleged against Shri Sampatrao Chavan in the Election Petition for which it was imperative to join him as Respondent in the Election Petition. Thus understood, this decision pressed into service on behalf of the Respondent is of no avail. 15. We may usefully refer to the decision of the Apex Court in the case of Shri Banwari Dass Shri Banwari Dass Shri Banwari Dass v.Shri Sumer Chand & Ors. reported in (1974) 4 SCC v.Shri Sumer Chand & Ors. reported in (1974) 4 SCC v.Shri Sumer Chand & Ors. reported in (1974) 4 SCC 817. 817. 817. In Paras 20 and 21, the Apex Court has : 14 : observed thus: "20. This Court has repeatedly held that ‘an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and the Court possesses no common law powers’. Statutory provisions of election law are to be strictly construed and its requirement strictly observed. In P.Malaichami v. M.Andi Ambalam, this Court speaking through Alagiriswami, J., again pointed out (at page 181, para 18): "Courts in general are averse to allow justice to be defeated on a mere technicality. But in deciding an election petition, the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is conferred the power to hear election petitions." 21. It must be remembered - to use the oft-quoted words of Grover, J., in Taunton’s case- "That although the object of the statute by which the election tribunals were created was to prevent corrupt practices, still the tribunal is a judicial, and not an inquisitorial one, it is a court to hear and determine according to law, and not a commission armed with powers to enquire into and suppress corruption." : 15 : 16. Suffice it to observe that the exposition of the Apex Court in the context of requirements of Section 81(3) cannot dispense with the necessity of allegations of any corrupt practice committed by any other candidate in the Election Petition, which alone can be recognised as a legal pleading. The contents of documents appended to the Election Petition cannot be treated as allegation made in the Petition (legal pleading) as such for the purpose of Section 82(b) of the Act. It is well established position that the requirements of election law will have to be strictly construed. If the argument of the Respondent was to be accepted, it would end up in a situation where the Petitioner would not be required to make any allegation against any one in the Petition itself but can merely annexe documents to the Petition and at the end of the trial, rely on the contents of the documents to make out a case of corrupt practice against the Respondent. That course is surely not permitted in the trial of an Election Petition, especially when the ground for setting aside the election is one of corrupt practice. It is also well established position that the : 16 : Respondent is not expected to wade through the documents and fend for himself to understand as to what case has been made out against him. The Respondent in an election trial, has to be put to clear notice at the beginning of the trial about the charge or allegations against him which can be tried on the basis of allegations in the Petition like the charge in a criminal trial especially when the ground for setting aside election is one of corrupt practice. It may be useful to refer to the dictum of the Apex Court in the case of Sushil Sushil Sushil Kumar v. Rakesh Kumar reported in (2003) 8 SCC 673 Kumar v. Rakesh Kumar reported in (2003) 8 SCC 673 Kumar v. Rakesh Kumar reported in (2003) 8 SCC 673 (Para 75) to the effect that the pleadings in an election petition must be construed strictly. For, it is not an action at law or a suit in equity but a special proceeding. In the recent decision of the Apex Court in Harkirat Singh vs. Amrinder Harkirat Singh vs. Amrinder Harkirat Singh vs. Amrinder Singh reported in (2005) 13 SCC 511 Singh reported in (2005) 13 SCC 511 Singh reported in (2005) 13 SCC 511, it is held that all material facts must be pleaded by the party in support of the case set up by him. For, the object and purpose of the Petition is to enable the opposite party to know the case he has to meet with, in the absence of pleadings, a party cannot : 17 : be allowed to lead evidence. (Also see Virender Nath Gautam vs. Satpal Singh & Ors. reported in (2007) 3 SCC 617 - paras 29, 30, 31, 34 and 35). 17. Accordingly, the Application is devoid of merits and the same deserves to be dismissed. 18. Hence, the Application is rejected with costs in the cause. 19. At this stage, Counsel for the Respondent prays that operation of this order be stayed as the Respondent may intend to file Appeal against this decision. In view of this request, hearing of the Election Petition is deferred till 26th September 2008, to be listed at 3.00 p.m. A.M.KHANWILKAR, J.