Bombay High Court

Shri Dilip Gangadhar Sonpal vs Shri.Rajendra Vithal Raut on 28 August, 2008

Bench: A.M. Khanwilkar

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.
        


                                                AUGUST 28, 2008.
     



       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

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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

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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.

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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

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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

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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

was

and has been named in the Petition, it

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

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continued to be candidate in the election (see

Mohan Raj vs. Surendra Kumar Taparia & Ors.

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

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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 igto 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

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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

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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.

K.Karunakaran & Anr. reported in AIR 1990 SC 924

and M.Kamalam vs. ig Dr.V.A.Syed Mohammed reported in

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

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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, ig 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."

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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

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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

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

v.Shri Sumer Chand & Ors. reported in (1974) 4 SCC

817. In Paras 20 and 21, the Apex Court has

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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, ig 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."

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     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 igwill 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

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