1 AEP : 10/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO.10 OF 2010 IN ELECTION PETITION NO. 02 OF 2009 Delkar Mohanbhai Sanjibhai .... Applicant Vs. Patel Natubhai Gomanbhai & Ors. .... Respondents Mr. Balkrishna Joshi Advocate for applicant in application and respondent no.3 in Election Petition. Mr. Vasant Kotwal, Senior Counsel a/w Ms. Anita Castalino i/by Little & Co. for petitioner in Election Petition. Mr. Varsha Palav for respondent no. 8 in Election Petition. Coram : Smt. R.P.SondurBaldota, J. Date : 6th December, 2010 P.C. 1. This is a second application filed by respondent no.1 for dismissal of the above Election Petition. Respondent no. 1 had earlier filed Application no. 4 of 2009 for dismissal of the petition under Section 86 read with 81(3) and 82 of The Representation of Peoples Act, 1951 (hereinafter referred to as "the R.P. Act"). That application was dismissed by the order dated 19th March 2010. A couple of months thereafter i.e. on 9th June 2010, respondent no.1 filed the present application for dismissal of the petition under Order 7, Rule 2 AEP : 10/2010 11, Code of Civil Procedure. The application is opposed by the petitioner submitting that there is absolutely no merit in the same. 2. The Election Petition has been filed to declare the election of respondent no.1 from the parliamentary constituency of UO3, Dadra & Nagar Haveli in the 15th Loksabha Elections held on 30th April 2009 as void and to declare the petitioner as the elected candidate in respect of the constituency. The petitioner had contested the election as nominated candidate of Indian National Congress Party, whereas respondent no.1 had contested as nominated candidate of Bharatiya Janata Party. The ground of challenge to the election is that, respondent no.1 himself and his agent and other persons indulged in corrupt practice within the meaning of Section 123(1)(A), 123(2) and 123(3) of the R.P. Act. 3. The present application has been filed on two grounds. Firstly that part of the grounds alleged in the petition i.e. the grounds at paragraphs 11 to 19 and 19(i), (ii), (iii), (iv) and paragraph 20 of the Election Petition deserve to be struck off since the allegations mentioned therein do not constitute corrupt practices under Section 123 of the R.P. Act. If these paragraphs are excluded, the remaining paragraphs of the petition do not make out any ground whatsoever rendering the petition without cause of action. Secondly that the allegations made in the petition are bereft of necessary particulars and hence the petition does not disclose cause of action for want of 3 AEP : 10/2010 material particulars. 4. Mr. Joshi, the learned counsel for respondent no.1 submits that Section 123 of the R.P. Act, that describes the acts of corrupt practices, refers to acts of a `candidate’ or his election agent or any other person with the consent of the candidate or his election agent. Therefore, unless a person is a candidate, as defined under the R.P. Act, no act done by him can be said to be a corrupt practice. Section 79(b) of the R.P. Act, defines candidate as a person who has been or claims to have been duly nominated as a candidate at any election. Further Section 34 of the Act provides that a candidate shall not be deemed to be duly nominated for election from a constituency unless he has deposited the amount specified under Section 34 of the Act. Therefore, a person can be said to be a candidate only when he files his nomination papers and also pays the compulsory deposit under Section 34 of the Act. Mr. Joshi, points out that respondent no.1 had filed nomination paper on 8th April 2009 and paid compulsory deposit on the same day, thus fulfilled the definition of candidate only on 8th April 2009. Therefore any act of respondent no.1 on the date prior thereto cannot be said to be a corrupt practice under Section 123 of the R.P. Act. No such allegation can be relevant for challenging the election. He argues that the allegations made at paragraphs 11 to 19 and 19(i)(ii)(iii) (iv) and 20 relate to the incidents prior to 8th April 2009, as such these paragraphs are required to be deleted from the petition, being irrelevant. He further submits that if these paragraphs 4 AEP : 10/2010 are deleted from the petition, the remaining paragraphs therein do not make out any ground for challenge to the election, rendering the petition without cause of action. Mr. Joshi relies upon decision of the Apex Court in Mohan Rawale vs. Damodar Tatyaba Alias Dadasaheb and another, reported in (1994) 2 Supreme Court Cases 392 in support of his submission that allegations relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice. 5. Mr. Kotwal, the learned Senior Counsel for the petitioner, in fairness concedes that respondent no.1 was duly nominated as a candidate only on 8th April 2009 and therefore, any act done by him prior to that date will not be relevant for the purposes of Section 123 of the R.P. Act. He, however submits that paragraphs 11 to 18 are not set out in the petition as grounds of challenge to the election. These paragraphs serve only as a prelude or preface to the subsequent paragraphs. The averments made therein set out the background for the allegations of corrupt practices made in succeeding paragraph. He points out that paragraph 19 of the petition in fact bears a sub-title of “corrupt practice”. Therefore paragraphs preceding thereto are not even meant to be corrupt practices. Mr. Kotwal submits that the decision of the Apex Court in Mohan Ravale’s case (supra) relied upon by respondent no. 1 does not completely discard such allegations. He points out that in the decision cited, the Apex Court though declared the allegations relating to the period anterior to candidature as 5 AEP : 10/2010 irrelevant to establish the corrupt practice proprio vigore, it did not strike out the allegations from the election petition. It left the contention raised by the petitioner therein, that the allegations were relevant and admissible for other purposes, for the decision of High Court at the appropriate time. He submits that the statements and averments at paragraphs 11 to 18 are relevant as they are introductory in nature and set out the background for the allegations made in the subsequent paragraphs. 6. The rival submissions make it necessary to first refer to ,in brief, the allegations of corrupt practices at paragraph 19 onwards of the petition and then refer to the averments in the earlier paragraph to find out whether the averments serve as the introduction or background material for the allegations of corrupt practices. Both the advocates have taken me through all the relevant paragraphs of the election petition. At paragraph 19, it is alleged that on 7th April 2009 a meeting styled as shibir was organised by the Silvassa Swaminarayan Temple in the temple complex which was attended to by more than 2200 followers. At around 11.30 am, respondent no.1 attended the shibir escorted by Shri Chinmay Swamy and Dr. Swamy the heads of Swaminarayan Sect. Shri Chinmay Swamy appealed to the gathering to vote for respondent no.1 by stating that he is a BJP candidate and a follower of Swamynarayan Sampraday, who has helped the Sampraday a lot. Respondent no. 1 was introduced by Swamy “as our man who has helped our religion and worked for us”. 6 AEP : 10/2010 The photographs of the shibir and respondent no.1 along with Swamy were published on the rear page of magazine by name Luhari Times, which is circulated in the constituency of Dadra and Nagar Haveli. The photographs of were published on the rear page of April 2009 issue of the magazine in order to remind the voters of the message of Swamy to vote for respondent no.1 as he is a Hindu religious Swamynarayani and vote for him on the basis of his religion. Though the issue purported to bear the date of 6th April 2009, as the date of publication on page 3, it was actually printed and published after 18th April 2009 since it contained reports of the shibir dated 7th April 2009 and also the events that had taken place on or after 18th April 2009. Hundreds of copies of the Luhari Times were circulated in the constituency of Dadra and Nagar Haveli along with the voters slips of BJP on 26th/27th April 2009. The front cover page of the issue had a picture of respondent no.1 bowing before the Gurus of Swamynarayan Sampraday with a caption below that respondent no.1 was receiving blessings for victory from the Pramukh Swamy. The cover page also has picture of lotus, a BJP election symbol. The rear cover page on its both sides bears photographs of respondent no.1 with Pramukh Swamy taken at the shibir. The petition alleges that these photographs were published to induce the readers of Luhari Times to support BJP. The photographs were printed and published with the knowledge and consent of respondent no.1, his election agent and other persons working for respondent no.1. April issue of Luhari Times was 7 AEP : 10/2010 circulated on 26/27th April 2009 onwards i.e. just four days before the date fixed for election i.e. 30th April 2009 to appeal to religious instinct of the voters who are poor and staunch followers of Swamynarayan Sampraday. Pages 14 and 15 of the issue contained photographs of respondent no.1 with his interview and appeal to the public to vote for BJP and make him victorious. These corrupt practices according to the petitioner prejudicially affected the election results. Page 28 of the issue contained photographs of Mr. Lalit Patel, the editor of Luhari Times and others describing them as great warriors, who had entered the battle field to give historic victory to BJP and finish Congress. Immediately upon learning of the circulation of April 2009 issue, the petitioner's election agent had addressed letter dated 27th April 2009 to the Returning Officer, Dadra and Nagar Haveli, Silvassa bringing the above facts to his notice and requested for action. By his letter dated 28th April 2009, the Returning Officer had called upon respondent no.1 to give his comments on the complaint by the next day i.e. 29th April 2009. Respondent no.1, however, failed to give his comments and despite that no action was taken by the Returning Officer. 7. The above allegation of unduly influencing inhabitants of Dadra and Nagar Haveli to vote in favour of respondent no.1 playing upon their religious sentiments are preceded by the following averments in the earlier paragraphs at 7 to 18. Dadra and Nagar Haveli Parliamentary Constituency is a tribal area, 8 AEP : 10/2010 having 72 villages and an approximate total no. of 1,54,198 registered voters. In the past 2-3 years, a section of Dadra and Nagar Haveli Parliamentary Constituency had come under the influence of Swamynarayan Sampraday, which is religious sect. Swamynarayan Sampraday Guru is referred to, in Dadra and Nagar Haveli as Divine Holiness, P.P. Pramukh Swamy Maharaj. About 30 years back, the Sampraday established it's 1st temple at Silvassa and over a passage of time, it established 11 temples in different parts of Dadra and Nagar Haveli. There is a big temple under construction on a vast plot land of 12 acres in Silvassa. Apart from the temple, Swamynarayan Sampraday undertakes several activities in the whole of Dadra and Nagar Haveli either in its temples or at local halls or in the residential places of its followers. The activities undertaken include regular shibirs with daily, weekly, monthly and annual schedules. At the shibirs, there is interaction between the Swamy's and villagers. This has built up a brotherhood amongst the Swamynarayani's. The temples also provide food, clothes and for other basic needs of inhabitants of the area. Therefore the Swamy's have a great impact on the minds and lives of the villagers. They are influenced by the speeches of Swamys and interactive shibirs held by them. 8. Magazine Luhari Times is edited, owned and published by Mr. Lalit Patel, President of Shiv Sena, Dadra and Nagar Haveli. Its April 2009 issue was published at Gita News Network, Near High School, Amli, Silvassa, Dadra and Nagar Haveli, Silvassa. Mr. Hitesh Lad, the 9 AEP : 10/2010 office bearer of BJP is the Bureau Chief of the magazine. The magazine is a mouth piece of BJP-Shiv Sena Alliance and has also been a medium of communication with Swamynarayan followers in Dadara and Nagar Haveli, with BJP-Shiv Sena and other political parties supporting the alliance. Respondent no.1 is the close friend and associate of Mr. Lalit Patel. Both are followers of Swamynarayan Sampraday. Mr. Lalit Patel was an active campaigner of respondent no.1 and addressed several meetings and gatherings in support of candidature of respondent no.1. The issues of Luhari Times for October 2008, November 2008, January 2009 and March 2009 extensively covered activities of respondent no.1 and an interview by him regarding Lok Sabha elections. The Issue also contained reports and photographs of visits of BJP President-Mr. Rajnath Singh, Chief Minister of Gujarat, Mr. Narendra Modi and Chinmay Swamy of Swamynarayan temple. It contained narration by Chinmay Swamy that respondent no. 1 would bring “Ramrajya” in the Union Territory. The main campaigners for respondent no. 1 have been Mr. Lalit Patel, Mr. Deepak Jadhav (his election agent), Fatehsinh Chavan, Janata Dal President, Anil Patel, Ex-BJP candidate and Hirabhai Patel, JDU worker. 9. As regards paragraphs no.19(i) (ii) (iii) (iv) and 20 of the petition, though the averments therein refer to shibir held on 7th April 2009, the connecting averments are at paragraph 21, wherein it is stated that the photographs of the shibir and the appeal made therein 10 AEP : 10/2010 was used by respondent no.1 after commencement of his candidature. 10. If one reads the allegations of corrupt practices from paragraph 19 onwards and paragraphs 7 to 18, it becomes clear that the averments in the earlier paragraphs are in the nature of introductory remarks or background information to the allegations of corrupt practices. These averments hence are relevant and admissible for other purposes, though not as the corrupt practices. 11. The second ground pleaded by respondent no. 1 for dismissal of the petition is that the averments made in the petition of corrupt practices are devoid of material particulars and hence the petition does not disclose cause of action. Mr. Joshi relies upon decisions of the Apex Court in the case of Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, reported in A.I.R. 1987 Supreme Court, 1577 and in the case of Azhar Hussain vs. Rajiv Gandhi, reported in AIR 1986 Supreme Court, 1253., in support of his contention as regards the particulars that have been treated as material particulars by the Apex Court. He submits that in the Azhar Hussain's case, the Court found following particulars as material particulars:- • Allegation of painting of objectionable slogans; -- names of workers employed by the elected candidate or his agents who painted the slogans; • Allegation that returned candidates gave insinuating speeches; -- time, date and place of speeches; • Allegation of display of objectionable poster in the constituency, -- production of copy of poster; -- names and facts spelling out consent of returned candidate or his agent; 11 AEP : 10/2010 • Allegation of distribution of book containing objectionable statements. – averments that the book was published and distributed with consent or knowledge of returned candidate, quoting of offending paragraphs in election petition. • Allegation of distribution of pamphlets relating to personal character of a candidate. -- Particulars as to who printed, published and circulated the pamphlets, when, where and how it was circulated and facts to indicate returned candidate's consent for such distribution. Mr. Joshi argues that the above decision shows that almost every detail of the act of corrupt practices has been treated by the Apex Court as material particular. 12. The application filed by respondent no.1, does not specify the material particulars that are missing from the petition. Mr. Joshi, however, during the course of his arguments submitted that according to him, the petitioner ought to have stated the text of the appeal made by Chinmay Swamy in the shibir dated 7th April 2009 and the particulars as regards who had printed, published and circulated magazine of Luhari Times and the date and time of circulation. Perusal of the petition shows that at paragraph 19, the petitioner has stated that the meeting of 7th April 2009 was attended by one Gulabbhai Nathubhai Jadhav, who has confirmed that there was an appeal made by Chinmay Swamy in the shibir to vote for respondent no. 1 by stating that he is a BJP candidate and a follower of Swamynarayan Sampraday, who had helped the Sampraday a lot. The appeal was responded to by the gathering by clapping and shouting “Vijay Thase”. It is followed by averments at paragraphs 19, 20, 22, 24 and 27 of the petition specifically disclosing names of the parties 12 AEP : 10/2010 involved in the alleged corrupt practices. Paragraph 21 gives the date and place of commission of corrupt practices. The petitioner has alleged that Luhari Times for the month of April 2009 was printed after 18th April 2009. About 25000 copies of the issue were circulated to the entire constituency on 26th April 2009 onwards in a campaign amongst the Swaminarayanis along with the voters slips giving particulars of the concerned voter. The publication of the material was with the knowledge and consent of respondent no.1. The editor of Luhari Times is Mr. Lalit Patil. The areawise distribution has also been given. Respondent no. 1 and Mr. Deepak Jadhav, election agent of respondent no.1 did distribution in the entire territory with Mr. Lalit Patel, Shiv Sena President from the area, in the entire constituency. Mr. Anil Patel, Ex-BJP candidate did it in Silvassa City and Mr. Heerabhai Patel, JDU worker, in Amboli block, Dr. Gulabhai Patel in Silvassa and Amli City, Mr. Patel, Bharatiya Janata Party active worker in Dadara block, Mr. Chandubhai Gavit in Randha block, Hiru Patel in Rakholi block, Mr. Nilesh Gavit in Dapada block, Mr. Ladak Misal in Khanvel block, Mr. Rajesh Kharpadia in Dudhni block and Mr. Hitesh Lad, who is bureau Chief of Luhari Times magazine in Silvassa city. All these persons have been campaigners of respondent no.1. Thus, it is seen that all the necessary particulars as regards those alleged corrupt practices are mentioned in the petition. Mr. Joshi then submits that the persons above named are not the members of Bharatiya Janata Party and Shiv Sena Party and it would be easy for 13 AEP : 10/2010 the petitioner to simply allege that the distribution of the issues has been done by them. Since the petition contains the necessary particulars, any evidence as regards the actual distribution of magazine by these persons is a matter of evidence. 13. The Apex Court in Mohan Rawale’s case (supra) has noted distinction between “material facts” and “full particulars”. It held that the distinction between the two terms is one of degree. The lines of distinction are not sharp. “Material facts” are those which a party relies upon and which, if he does not prove, he fails at the time. It noted that “the purpose of “material particulars” is in the context of the need to give the sufficient details of the charge set up against him and to give him a reasonable opportunity”. In the facts of the present case, the petition disclose sufficient details of the charge set up against respondent no.2 so as to give him a reasonable opportunity and there is a triable issue arising out of the pleadings. Hence, the application is dismissed. ( Smt. R.P. SondurBaldota, J.)