1 IN THE HIGH COURT OF BOMBAY AT GOA APPLICATIONS IN ELECTION PETITION NO. 2/07, 10/07 & 12/07 IN ELECTION PETITION NO. 4/2007 Shri Dayanand Narvekar .... Applicant V/s Shri Pradeep J. Khaunte .... Respondent Mr. S.G. Dessai, Senior Advocate with Mr. P. Talaulikar, Advocate for the Applicant. Mr. S.M. Walwaikar, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 13th JUNE, 2008 ORDER : Heard learned Counsel on behalf of both the parties. 2. This order shall dispose of, the preliminary objections taken on behalf of the respondent, as regards maintainability of the petition. 3. The petitioner was an elector for the Aldona Assembly Constituency in the State of Goa for which elections were declared on 8/05/2007 and held on 2/06/2007 and the respondent was declared elected having polled the highest number of votes i.e. 9,251. The next highest votes 6,217 were polled by respondent no.6 i.e. a candidate of Bharatiya Janata Party. The petitioner's spouse i.e. respondent no.7 poled 5,298 votes. The petition was initially filed against as many as 13 respondents, but the petitioner subsequently chose to 2 delete their names keeping the returned candidate as the only respondent. 4. After filing of the petition, the respondent has filed an application dated 28/09/2007 (2/07), raising several preliminary objections particularly in regard to non-compliance of Sections 81,82,83 read with Section 86 of the Representation of the People's Act, 1951 ('Act', for short). Another application dated 1/11/2007 (10/07) was also filed on behalf of the respondent in terms of Order 6, Rule 16 CPC, 1908 . Yet another application was filed on 29/11/2007 (12/07) taking additional preliminary objections and this was filed without amending the first application dated 28/09/2007, as that would be the only mode available in law to take additional objections and not by way of another application. The petitioner also filed an application dated 4/10/2007 seeking leave to file an affidavit in form 25 as required under Rule 94-A of the Conduct of the Elections Rules, 1961 stating that an affidavit in form 25 was being filed with a view to bring more clarity to the affidavit dated 19/07/2007 already filed which otherwise substantially complied with every requirement of law. 5. Be that as it may, the main point to be considered by this Court is whether the petition discloses a cause of action against the respondent to proceed with the trial or whether the petition ought to be dismissed for non- disclosure cause of action in terms of Order 7, Rule 11(a) CPC read with 3 Section 83(1)(a) of the Act. 6. Broadly stated, the petition has been filed on the grounds that; (a) the respondent indulged in corrupt practices (i) by distributing T-shirts and caps to over 8,000 participants at the rally and provided them food worth over Rs. 25 lacs; (ii) distributed CDs to the voters incurring an expenditure of over Rs. 1 lac; (iii) gifted more than 10,000 T-shirts incurring an expenditure of over 7 lacs, with a view to procure votes; (b) The respondent suppressed the fact that charge was framed against him in CC No. 161/S/2001/D in his nomination paper and thus the nomination of the respondent was improperly accepted; and (c) the respondent was Chairman of the Info Tech Corporation, which was a Government Company, as the Government of Goa held more than its 25% share capital and thus the respondent was disqualified in terms of Section 10 of the Act. At this very stage, it may be stated that this third ground was not pressed for on behalf of the petitioner at the time of arguments. On behalf of the respondent, it was, however, stated that office of the Chairman of the Info Tech Corporation of Goa Ltd. is not an office of profit in terms of Goa Members of Legislative Assembly (Removal of Disqualification) Act, 2005 and, moreover, the respondent had already resigned as Chairman of the Info 4 Tech Corporation on 14/05/2007 and the resignation was accepted on the same day. It is not the case of the petitioner that the respondent was holding an office of profit and thus was disqualified in terms of clause (a) of sub- section (1) of Section 100 of the Act. 7. The case of the petitioner is that the election of the respondent is challenged by his spouse, the respondent no.7, whose name, as already stated, has since been deleted, and, therefore in this petition, the petitioner claims that he is questioning the election of the respondent on limited corrupt practices. 8. As per the petitioner, the election observers Ms. Kavita Bhatnagar and Usha Sharma have submitted a detailed report to the Chief Electoral Officer about large scale corrupt practices of the respondent and they seized large quantities of T-shirts and caps which the respondent's agents were distributing amongst the voters as free gifts and the respondent in a statement of accounts of the election expenses submitted to the Chief Electoral Officer, has admitted having gifted such T-shirts and caps but has fraudulently shown a meagre quantity of such articles. The respondent during the election period had arranged a big rally of motorcyclists and others, and the gifting of such T-shirts would not be less than 8,000 for the participants of the said rally and there were about 8,000 participants on different vehicles and each of them 5 were wearing such T-shirts and caps gifted by the respondent which was video recorded. The petitioner also stated that the respondent and his agents distributed/gifted such T-shirts and caps in every village of Aldona Constituency. The respondent also gifted at least one T-shirt and one cap to each of the participants in the said rally which had more than 8,000 participants and they were also supplied with fuel at the costs of the respondent and the said rally which started from Porvorim Village ended at Pomburpa Village ground where the respondent arranged a big party and the participants were given free veg. and non-veg. food, the total costs of which was more than 25 lacs and this rally was publicized by all local newspapers. 9. The petitioner has also pleaded that the respondent in his election campaign also took out a CD of his purported achievements in an outside Aldona Constituency and gifted such CDs in bulk to the public/voters with a view to attract the voters and with a view to mislead the voters about the purported works done in Aldona Constituency which works in fact were completed during the terms of different MLAs at different times and the expenses incurred by the respondent would come to more than Rs. 1 lac which the respondent has not accounted in his election expenses and the said CD would show the recording of events of the said rally and the participants wearing the T-shirts and caps gifted to them by the respondent as well as the open and large scale gifting of such articles by the agents of respondent and 6 one of such CDs was in possession of the petitioner till the respondent no.7 filed an election petition. 10. The case of petitioner is also that the respondent gifted more than 10,000 T-shirts bearing his photograph and an appeal to the voters to vote for him and the cost of each of the T-shirt works out to a minimum of Rs. 70/- on moderate calculation and the total cost would come to Rs. 7 lacs at a moderate calculation but the respondent craftily accounted only 500 out of 10,000 T-shirts and, at the best, a sum of Rs. 10 lacs should have been added to the expenditure returns of the respondent. The petitioner also stated that the distribution of T-shirts openly to the public/voters was detected by the election observer/officials and sizable number of such T-shirts and caps have been seized from agents of respondent no. 1 which distribution amounts to a corrupt practice of bribing under Section 123(1) of the Act and moreover, the said T-shirts were printed and distributed without the name of the manufacturer indicated on it so as to avoid checking. 11. The case of the respondent on the other hand as far as this aspect is concerned, though not relevant at this stage to decide the issue involved, is that the respondent in his statement of accounts has accounted for 500 T- shirts and 500 caps. The respondent has stated that the CD of the rally has not been furnished to the respondent and therefore he is unable to make any 7 statement of his defence in as much as the police reports are also not furnished to him. The respondent has stated that he was born on 11/02/1950 and on the account of his 50th birthday, the Aldona Congress (I) Block Committee decided to prepare a videograph highlighting major events of political career of the respondent for over 25 years and accordingly a videograph was made by the said Aldona Congress (I) Block Committee depicting the events upto 15/04/2007 and 100 CDs were made and distributed by 16/04/2007 and, the distribution of such CDs before the elections were notified on 8/05/2007, does not violate the model Code of Conduct for the guidance of political parties. Likewise, the respondent has stated that 500 T- shirts and 500 caps were made and delivered to respondent before 15/04/2007 and some workers had put his T-shirts and caps in the rally held from Malim Jetty on 15/04/2007 which was organised by Aldona Block Congress (i) Committee but by way of an abundant caution the amount spent on T-shirts and caps has been shown in the statement of election accounts submitted by the respondent. It is also stated that the T-shirts and caps were distributed on 15/04/2007. 12. With a view to support the alleged corrupt practices of the respondent, the petitioner has, inter alia, filed a newspaper cutting from Herald dated 23/04/2007 which shows that a rally was held by Aldona Block Congress Committee from Malim Jetty to Aldona. 8 13. Learned Senior Counsel, on behalf of the respondent, has submitted that the petition does not disclose a cause of action which is fatal and therefore there is no question of proceeding with the trial. Referring to Section 100 (1)(b) of the Act, learned Senior Counsel submits that a corrupt practice, to declare an election void, had to be committed by returned candidate after he is nominated as a candidate and since the rally was held on 15/04/2007, before the election schedule was announced w.e.f. 8/05/2007, distribution of the T-shirts or caps would not amount to a corrupt practice as it related to a date prior to notification issued on 8/05/2007. Learned Senior Counsel further submits that the thrust of the petition is on the said rally held on 15/04/2007 to which the corrupt practices are referable. In support of his submission, learned Senior Counsel placed reliance on the case of Mohan Rawale V/s. Damodar Tatyaba @ Dadasaheb & Ors. (1994 (2) SCC 392), wherein it is held 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. 14. On the other hand, Shri Walwaikar, the learned Counsel on behalf of the petitioner, has submitted that even in case the said corrupt practices were indulged before the declaration of the date for an election, the same would amount to bribery. Learned Counsel Shri Walwaikar further submitted that 9 the petitioner in para 9 has pleaded that the election observers had seized large quantity of T-shirts and caps which the respondent's agents were distributing amongst the voters as free gifts and the election observers could have come into the picture only after the elections were declared and the petitioner has shown that the respondent had indulged in corrupt practices after the elections were declared on 8/05/2007. 15. Section 100 of the Act provides for the grounds for declaring an election to be void and sub-section (1)(b), inter alia, provides that subject to the provisions of sub-section (2), if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void. Section 123 of the Act defines 'corrupt practices' and it also, inter alia, defines 'bribery' which includes any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing – (a)....... (b) an elector to vote or refrain from voting at an election, or as a reward to. (i)...... 10 (ii) ..... 16. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part (i.e. part VI Chapter II). Section 81 of the Act deals with presentation of a petition and sub- section (1) thereof provides that an election petition calling in question any election may be presented on one or more of the grounds specified in sub- section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within 45 days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Section 83 of the Act deals with the contents of petition, and further provides that (1) An election petition- (a) shall contain a concise statement of the 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 corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid 11 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. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 17. The case of the respondent is that the petition does not contain a concise statement of material facts on which the petitioner relies or seeks to rely upon, nor does it set forth full particulars of any corrupt practice that the petitioner has alleged including a full 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 case of the respondent is that the averments made in the petition do not constitute a concise statement of material facts and it also has no full particulars of the alleged corrupt practice including the names of the parties and the date and place of the commission of each such practice and as such the statements made in the petition are vague, remote, indirect and irrelevant and do not satisfy the provisions of Section 83(1)(a) and (b) of the Act. 18. Whether in terms of Order VI, Rule 2, CPC or clause (a) of sub- 12 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 for 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. 19. 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. 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. ....” The Apex Court stated that the distinction between “material facts” and “full particulars” is one of degree and the “material facts” are those 13 which a party relies upon and which, if he does not prove, he fails at the time. Referring to Bruce V/s. Odhams Press Ltd., (1936 1 All ER 287), the Apex Court noted that: “The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad.” The purpose of “material particulars” is in the context of the need to give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity. Referring to Halsbury, the Apex Court in para 14 noted that: “The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required.” In para 18, the Apex Court has reiterated that: An election petition can be rejected under Order VII Rule 11 (a) CPC if it does not disclose a cause of action and the pleadings could also be struck out under Order VI, Rule 16, inter alia, if they are scandalous, frivolous or vexatious. The latter two expressions meant cases where the pleadings are obviously frivolous and vexatious or obviously unsustainable. 20. In Azhar Hussain V/s. Rajiv Gandhi (1986 (Supp) SCC 315), the Apex Court referred to the expression “material facts” and “particulars” which an election petitioner is required to incorporate in his petition and has stated that material facts are facts which if established would give the petitioner the relief asked for and the test required to be answered is whether 14 the Court could have given 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. 21. It would also be advantageous to refer to the case of V. Narayanaswamy V/s. C.P. Thiruna Vukkarasu (2000 (2) SCC 294), wherein a three Judge Bench of the Hon'ble Supreme Court after referring to several of its decisions has come to the conclusion that: An election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81,83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the Court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. The Court reiterated the principle that: There is a difference between “material facts” and “material particulars”. 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” mean 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. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is 15 required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance (as expounded in Murarka Radhey Shyam Ram Kumar V/s. Roop Singh Rathore & Ors. (1964 SC 1545)). The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 CPC. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired into and tried at all. In such a case the petition has to be rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is not part of the duty of the Court suo motu even to direct furnishing of better particulars without objection is raised 16