1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 2ND DAY OF DECEMBER 2011 THE HON'BLE MR. JUSTICE V. DHANAPALAN A.No.2610 of 2011 in Election Petition No. 2 of 2009 ELP. No. 2 of 2009 P. Mohan (Deceased) T-110, Housing Board Colony, Ellis Nagar, Madurai – 10. A.Lazar, S/o. Asirvatham 13/12, 3rd Street, Bharathiyar Nagar, Chokkanathapuram Main Street, Vilangudi, Madurai – 18. (Substituted in the place of deceased Petitioner Late P. Mohan, as per order in O.A. No. 1358 of 2009 dated 06.09.2010) ... Petitioner -VS- 1. M.K.Azhagiri 25/4A, Sathaya Sai Nagar, Madurai. 2. N. Dharbar Raja 3/622, Kalaignar Nagar, Vilachery, Madurai – 6. 3. C. Kaviyarasu 247, Brindhavan Street, Naganakulam Panchayat, Madurai. 4. K. Anand 12/8, Shanthi Nagar, Melur, Madurai. 5. R. Gopal 13, Mullai Street, Pethaniapuram, Madurai – 16. 6. V. Sivakumar 3/112, Thilagar Street, Indian Bank Colony, Narayanapuram, Madurai – 14. 7. K. Thangapandi Old No.18, New No. 70/2, Sabethar Madam Thalaivirichan Street, https://hcservices.ecourts.gov.in/hcservices/ 2 33rd Ward, Madurai – 1. (Amended as per order passed in A.No.2639 of 2011 dated 29.09.2011) 8. M.A. Nagamalai 3/144, Alampatti Village, Nagamalaipudukottai Post, Madurai. 9. M. Palpandi 30, P.P. Giri Saalai Sundarrajapuram, Madurai – 4. 10.T.R. Mothilal NO.39-T-1, Karthik Apartment, Amirkhan Street, Choolaimimadu, Chennai. 11.S. Veeradurai No.J-11-1, Tamilnadu Housing Board Colony, 1st West Cross Street, K.K. Nagar, Madurai. (Amended as per order passed in A.No.188 of 2011 dated 29.09.2011) 12.The Returning Officer, The District Collector, Madurai. * R12 (The Returning Officer, The District Collector, Madurai) has been struck off from the array of respondents as per the order of this Hon'ble Court dated 22.11.2011 in O.A.No. 855 of 2011 ... Respondents A.No. 2610 of 2011 M.K.Azhagiri 25/4A, Sathaya Sai Nagar, Madurai. ... Applicant -VS- 1. A.Lazar, S/o. Asirvatham 13/12, 3rd Street, Bharathiyar Nagar, Chokkanathapuram Main Street, Vilangudi, Madurai – 18. ... 1st Respondent / Substituted Petitioner 2. N. Dharbar Raja 3/622, Kalaignar Nagar, Vilachery, Madurai – 6. 3. C. Kaviyarasu 247, Brindhavan Street, Naganakulam Panchayat, Madurai. 4. K. Anand https://hcservices.ecourts.gov.in/hcservices/ 3 12/8, Shanthi Nagar, Melur, Madurai. 5. R. Gopal 13, Mullai Street, Pethaniapuram, Madurai – 16. 6. V. Sivakumar 3/112, Thilagar Street, Indian Bank Colony, Narayanapuram, Madurai – 14. 7. K. Thangapandi Old No.18, New No. 70/2, Sabethar Madam Thalaivirichan Street, 33rd Ward, Madurai – 1. (Amended as per order passed in A.No.2639 of 2011 dated 29.09.2011) 8. M.A. Nagamalai 3/144, Alampatti Village, Nagamalaipudukottai Post, Madurai. 9. M. Palpandi 30, P.P. Giri Saalai Sundarrajapuram, Madurai – 4. 10.T.R. Mothilal NO.39-T-1, Karthik Apartment, Amirkhan Street, Choolaimimadu, Chennai. 11.S. Veeradurai No.J-11-1, Tamilnadu Housing Board Colony, 1st West Cross Street, K.K. Nagar, Madurai. (Amended as per order passed in A.No.188 of 2011 dated 29.09.2011) 12.The Returning Officer, The District Collector, Madurai. * R12 (The Returning Officer, The District Collector, Madurai) has been struck off from the array of respondents as per the order of this Hon'ble Court dated 22.11.2011 in O.A.No. 855 of 2011 ... Respondents / Respondents This Application praying that this Hon'ble Court be pleased to strike off the pleadings in paragraphs 8,9,10,11,12,13,14,15,16 and 17 in the Election Petition 2 of 2009 consequently to reject the Election Petition No. 2 https://hcservices.ecourts.gov.in/hcservices/ 4 of 2009 as being bereft of material facts and particulars, vague, vexatious and for want of cause of action and triable issue. This application having been heard on 02.12.2011 and the arguments of M/s.T.R.Rajagopal, Senior Counsel for M/s.K.Azhaguraman, Mrs.Meera Ramesh, S.Siva Subramani, advocate for the Applicant / 1st respondent and Mr.T.V.Ramanujam, Senior Counsel for M/s.T.V.Krishnamachari, V.K.Elango, C.Jagadish, N.C. Ashok Kumar, R.Ramya, advocate for the 1st respondent / Election Petitioner, Mr.K.Sathiyabal, advocate for the 5th respondent, Mr.K.Kathiresan, advocate for the 6th respondent, Mr.C.Kanagaraj, advocate for the 9th respondent and Mr.M.R.Raghavan, standing counsel for the Election cases for the 12th respondent and the respondents 2,3,4,7,8,10&11 are called absent and set exparte and upon reading the judges summon and affidavit of M.K.Azhagiri and counter affidavit of A.Lazar filed herein. The Court made the following order:- This Application has been filed to strike off the pleadings in Paragraphs 8,9,10,11,12,13,14,15,16 and 17 in the Election Petition 2 of 2009 and consequently to reject the Election Petition as being bereft of material facts and particulars and for want of cause of action and triable issues. 2. The case of the applicant runs thus : https://hcservices.ecourts.gov.in/hcservices/ 5 2.1. In para 7 on page 5 of the Election Petition the last few lines mentioned that the election petitioner is putting forth the details of the alleged corrupt practice committed by the applicant with date and place of occurrence with full statements is false, as the election petition does not contain any details regarding the averment. No where, the election petitioner has shown with solid proof that the applicant or his men are involved in election misconduct. 2.2. In para 8 on page 6 of the Election Petition, the election petitioner stated that the applicant was indulging in bribing the electors by distribution of money and he also furnished the names of persons who had given the complaint. The petitioner has given a tabular column in which he has furnished the names of some persons who are alleged to have acted on behalf of the applicant and against whom complaints were lodged and the date of occurrence of misconduct. None of the allegations in Para 8 of the Election Petition that the applicant/first respondent in the Election Petition offered gratification by way of cash to the electors without material particulars will satisfy the requirement of Sections 123 (1) (A) or 123 (1) (B) of the Representation of the People Act,1951, in short, "the Act". 2.3. The averment contained in para 9 of the Election Petition on the basis of Document No.l4, a copy of the https://hcservices.ecourts.gov.in/hcservices/ 6 complaint given by the District Committee Secretary, Communist Party of India (Marxist) to the Chief Election Commissioner, New Delhi, is nugatory and does not carry any merit. 2.4. Para 10 of the Election Petition contains the names of the party functionaries of the applicant, who had not done anything against the model code of conduct. Their names are unnecessarily dragged in to create a case. The election petitioner has alleged that the applicant's party functionaries distributed various types of slips to the electors to induce them to vote in favour of the applicant, which is absolutely false and baseless. The slips numbered as Document Numbers 15,16 and 17, which the applicant is alleged to have distributed, are ones created by the election petitioner. The Document No.18 referred to in para 10 is nothing but a slip given by the booth agent for easy identification of the names of the voters. This procedure is adopted by all the political parties in all the elections, as it is a routine one and, therefore, this document cannot be taken as a piece of evidence. In the very same para 10, the election petitioner has mentioned that some vehicles with covers having cash have been seized which are nothing to do with the applicant. The newspaper clippings referred to in para 10 and also referred to as Document Numbers 19 and 20 cannot be construed as genuine documents and the news items published by the newspapers https://hcservices.ecourts.gov.in/hcservices/ 7 are inadmissible in evidence. The para, as a whole, is indistinct and it lacks clarity and clearly reveals that the facts alleged by the election petitioner are only hearsay. 2.5. In para 11 in page 10 the allegation that the applicant's party functionaries distributed tokens to some section of the people when the applicant was campaigning in the Melur Assembly constituency is baseless and there is no proof to establish the same. A slip, which is marked as Document No.21 and which is alleged to have been distributed by the applicant's party functionary is nothing but a bit of plain paper and it does not bear the applicant's name or the party symbol. Further, Document No.22, a complaint given by a CPIM Party functionary (District Secretary), is created for the purpose of this case. Document No.23 is filed without any purpose and it is a xerox copy of the so called notification without any date of issue. Document Nos.24 and 52 have no authenticity and the applicant has nothing to do with the same. The alleged distribution of sarees and dhotis is only imaginary and it is not established that sarees and dhotis seized were meant for distribution to the voters by the applicant or his party men. 2.6. Documents 26,27,28 and 29 referred to in para 12 of the election petition are complaints given by the office bearers of the Communist Party, whose candidate was the https://hcservices.ecourts.gov.in/hcservices/ 8 petitioner in the Election Petition. The acknowledgement cards are not filed along with the copies. The election petitioner, as a common opposition candidate, has never given any complaint against the applicant. 2.7. In para 13, the election petitioner has accused the Public Relations Officer of the Government of Tamil Nadu. His accusations against the said PRO are baseless and mischievous. The petitioner has accused the PRO for his alleged involvement of misuse of official machinery. In Document No.35, the name of the PRO is not mentioned and it does not in any way ratify the involvement of the applicant. 2.8. Paras 14,15,16 and 17 are all based on the alleged complaints given against the applicant and his party functionaries for the alleged misconduct and breach of model code of conduct. Out of the 11 candidates in the election fray, only one candidate belonging to the main rival camp has given complaints after complaints against the applicant. 2.9. The document No.518 mentioned in para 21 of the Election Petition is not filed along with the Election Petition and the dates mentioned in para 22 viz., 13.05.2006 and 16.05.2006 are wrong dates and no cause of action arose on those dates, as alleged. 2.10. The election petitioner, no where, in the Election Petition has established with material facts and particulars that the result of the election, in so far as https://hcservices.ecourts.gov.in/hcservices/ 9 it concerns the returned candidate, namely, the applicant has been materially affected. Under Section 83 (1) (c) of the Act, the Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure and 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. The said provision is not complied with in this case even though the petitioner alleges corrupt practice. Therefore, the Election Petition is defective in material aspect and non-compliance of the requirement amounts to rejection of the Election Petition. 2.11. After striking off the above averments and pleadings, the remaining averments and pleadings in the Election Petition do not disclose any cause of action and triable issues and, hence, the Election Petition itself is liable to be rejected. 3. The first respondent/election petitioner has filed detailed a counter affidavit, reproducing the averments in paras 7 to 21 of the Election Petition, and also stating that the application has been filed only to drag on the proceedings; the averments in the election petition give rise to cause of action and triable issues and, hence, the application under Order VII Rule 11 CPC is not maintainable; the application does not attract the https://hcservices.ecourts.gov.in/hcservices/ 10 provisions of Order VI Rule 16 CPC and that the application is liable to be rejected in limine, as the prayer for striking off pleadings under Order VI Rule 16 CPC and the prayer for rejection of plaint under Order VII Rule 11 CPC in a single application cannot be countenanced. 4. Mr.T.R.Rajagopalan, learned Senior Counsel for the applicant, would contend that the requirements of Section 83 (1) (a) and (b) are not complied with by the election petitioner; the averments in paras 8 to 17 of the Election Petition are totally false and that there are no material facts or material particulars to prove the corrupt practices as defined under Section 123 (1) (A) and (B) and, therefore, the said paras are to be struck off. He would also contend that the Election Petition does not disclose any cause of action and, hence, it is to be rejected. He would rely upon the following authorities : (i) Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC 238 : "37. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated. If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible https://hcservices.ecourts.gov.in/hcservices/ 11 to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition. 38. Reverting therefore to our own case we find that the allegation in para 2-J was that Mr Fernandez made some statements and the “Maratha” published them. Extracts from the “Maratha” were filed as Exhibits. Since publication of a false statement is the gist of an election offence the charge was against the “Maratha”. If it was intended that Mr Fernandez should be held responsible for what he said then the allegation should have been what statement Mr Fernandez made and how it offended the election law. In 2J itself only three statements were specified and two of them had nothing to do with Mr Fernandez and the third was merely a news item which the “Maratha” had published. There was no reference to any statement by Mr Fernandez himself throughout the petition as it was originally filed. In fact there was no charge against Mr Fernandez which could have brought the case within Section 101(b) of the Act. The attempt was only to make out the case under Section 101 (d) against the “Maratha” (or Mr Atrey) pleading Mr Atrey as agent of Mr Fernandez. That too was pleaded in the amendments. 39. The result is that the case gets confined to that of a candidate responsible for the acts of his agent. In the argument before us Mr Chari for Mr Fernandez conceded the position that Mr Atrey could be treated as the agent of Mr Fernandez. We are therefore relieved of the trouble of determining whether Mr Atrey could be held to be an agent or not. The trial Judge was also satisfied that Mr Atrey could be held to have acted as the agent of Mr Fernandez. The case as originally pleaded fell within Section 101(d) with the additional burden. Although Mr https://hcservices.ecourts.gov.in/hcservices/ 12 Daphtary was content to prove that the consent of Mr Fernandez was immaterial as the corrupt practice of his agent was equally fatal to the election and attempted to prove his case under Section 100(1)(d) of the Act. Mr Jethamalani who took over the argument from him contended that the case fell to be governed by Section 101(b) i.e. to say of any person who did the act with the consent of Mr Fernandez. It is therefore necessary to pause here to decide whether Mr Atrey had the consent of Mr Fernandez to the publications in his newspaper." (ii) Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 : "15. Section 123(7) of the Act is as follows: “The obtaining or procuring or attempting to obtain or procure by a candidate or his agent or by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election from any person in the service of the Government and belonging to any of the following classes, namely: Clauses (a) to (g) which need not be set out here.” 16. It has to be noticed that the different expressions obtaining, procuring, abetting or attempting to obtain or procure are various forms of corrupt practices. It has to be found as to whether the allegation of obtaining assistance amounts to an allegation of fact. It will be well settled that general expressions like “fraudulently”, “negligently” or “maliciously” in pleadings do not amount to any allegation of fact. A fact is after all not a mere word. 17. The provisions of the aforesaid section indicate these heads of corrupt practices. First, the obtaining by a candidate or his agent or by any other person any assistance (other than the https://hcservices.ecourts.gov.in/hcservices/ 13 giving of vote) for the furtherance of the prospects of that candidate's election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election. Third, the abetting by a candidate or his agent or by any other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election as mentioned. Fourth, the attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election. Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining, (b) procuring, (c) abetting, and (d) attempting to obtain or procure assistance. 18. Therefore material facts are to be alleged as to whether the candidate obtained or procured or abetted or attempted to obtain or procure any assistance other than the giving of vote. In para 16 of the election petition it is alleged that the appellant committed the corrupt practice of obtaining and procuring or attempting to obtain and procure assistance for the furtherance of the prospects of his election from the persons mentioned there. Reading para 16 of the election petition one will search in vain to find out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and https://hcservices.ecourts.gov.in/hcservices/ 14 procured or attempted to obtain and procure assistance from each or some of the persons mentioned there. Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaining, procuring, attempting to obtain or procure assistance from each of the persons mentioned there. One will also conjecture and hazard as to what assistance was obtained or procured or attempted to obtain or procure from each of the persons mentioned there, for the furtherance of the prospects of that candidate's election. The giving of vote is not within the mischief of corrupt practice. It cannot be understood from the petitioner whether the giving of vote is the assistance alleged. It is, therefore, apparent that the appellant who was charged by the election petitioner with corrupt practice should be told in the election petition as to what assistance he sought. The type of assistance, the manner of assistance, the time of assistance, the person from whom assistance is sought are all to be set out in the petition. There is no allegation in the petition about the actual and the specific assistance with which the appellant can be charged in violation of the provisions of the Act. Nor is there any statement in the election petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered. The allegations against the appellant were in relation to six persons. Therefore, it was essential and imperative for the election petitioner to set out with exactitude and precision the type of assistance as also the manner in which assistance was obtained or procured from each person. The time, the date and the place of the assistance were also required to be set out in the particulars. Thus it had to be alleged https://hcservices.ecourts.gov.in/hcservices/ 15 as the material facts as to what assistance the appellant obtained or procured or abetted or attempted to obtain or procure from which person and how the assistance furthered the prospects of the appellant's election. If all the four variants and ingredients were to be charged against the appellant these had to be set out as statements of material facts in relation to each person. 19. The requirements in an election petition as to material facts and the consequences of lack of such allegation of material facts came up for consideration in this Court in the recent decision in Samant N. Balakrishna, v. George Fernandes, etc.1. In that case reference was made to Sections 81, 83 and 86 of the Act as the procedure provisions of election petition. Section 81 deals with presentation of petitions. Section 83 deals with contents of petitions. Section 86 deals with trial of petitions. Hidayatullah, C.J., speaking for the Court laid down these propositions. First, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of person with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section https://hcservices.ecourts.gov.in/hcservices/ 16 because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts. 20. The importance of material facts and the distinction between the material facts and particulars was also brought out in another recent decision of this Court in Manubhai Nandlal Amersey v. Popatlal Munilal Joshi2. In that case a charge in the petition was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the Congress party candidate they would become the objects of divine displeasure and spiritual censure. At a late stage of the trial the High Court