Mr. Sher Singh Dagar vs Dr.Yoganand Shastri & Ors.
2012 Latest Caselaw 1925 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                        Judgment reserved on: 2nd March, 2012
                                         Judgment pronounced on: 21st March, 2012


+       IA 6871/2011 in El. PET. No.12/2009


        Mr. Sher Singh Dagar                                  ...        Petitioner

                                         versus


        Dr. Yoganand Shastri & Ors.                             ...      Respondents


Advocates who appeared in this case:
For the Petitioner    :   Mr. Naresh Kaushik, Adv.

For Respondent        :   Mr. R.M. Bagai and Ms. Damini Khaira, Advs. for R-1.



CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
V.K. JAIN, J.

1. Election petition No.12/2009 has been filed by Mr. Sher Singh Dagar,

challenging the election of respondent No.1, Dr. Yoganand Shastri to the Delhi

Legislative Assembly, from constituency No. AC-45, Mehrauli, elections where

were held on 29.11.2008. The election has been challenged inter-alia on the

grounds that:- (i) respondent No.1 himself, and his agents and workers with his

consent, made an appeal to Muslim voters to vote for him, on ground of race

community and religion and the voters were made to excite the religious sentiments

and thereby respondent No.1 committed corrupt practice. (ii) respondent No.1

himself, and his agents and workers with his consent, made an appeal to Jatt voters

to vote for him on the ground of race, community and cast and to refrain from

voting for the petitioner. (iii) respondent No.1 himself, and his agents and workers

with his consent, hired and procured transport for the conveyance of the voters to

the polling stations and back from there and thereby committed a corrupt practice.

(iv) respondent No.1 himself and his agents and workers with his consent

distributed liquor to the voters in the Juggi Jhopri area in Kusumpur Pahari on

16.01.2008 and thereby he committed corrupt practice, and (v) respondent No.1

himself and his agents and workers with his consent distributed gifts in the form of

sarees in the area of Juggi Jhopri in Kusumpur Pahari on 28.11.2008 and thereby

respondent No.1 committed a corrupt practice.

2. The election of respondent No.1 has also been challenged on the ground that

some voters had polled two or more times in the same constituency whereas some

voters had polled in the constituency from where respondent No.1 was declared

elected, as well as other constituencies.

3. An additional affidavit was filed by the petitioner on 21.07.2010 by way of

amplification of the corrupt practices alleged and the other allegations made in the

petition. I.A. No.6871/2011 has been filed by him for permission to place the

aforesaid additional affidavit on record.

4. With respect to allegations of appealing to muslim electors to vote on

grounds of race, community and religion, it is stated in the additional affidavit that

respondent No.1 himself, and his agents and workers with his consent had appealed

to muslim voters, on 28.11.2008, in the presence of Abrar Ahmed and Rajinder

Kumar, on the ground of race, community and religion, not to vote for the

petitioner and to cast their votes in favour of respondent No.1.

With respect to the corrupt practice, by way of an appeal to jat electors of

Village Kishangarh, it is stated in the additional affidavit that respondent No.1 and

his workers and agents with his consent had made an appeal to the jat electors of

Village Kishangarh on 24.01.2008 at 4.00 p.m. and the aforesaid appeal was made

by respondent No.1 himself in the presence of Baljeet Singh and others. Baljeet

Singh is stated to be a resident of Kishangarh, Mehrauli.

With respect to allegations of procurement of vehicle for the voters, it is

stated in the additional affidavit that the vehicles were engaged by Manish Dagar

and Ashwani Rathi, workers of respondent No.1 for the conveyance of voters of

Vasant Kunj area.

Regarding distribution of liquor and sarees to the voters in Kusumpur Pahari,

it is stated in the additional affidavit that respondent No.1 himself and his agents

and workers with his consent had distributed liquor to voters of Juggi Jhompri in

Kusumpur Pahari area on 16.11.2008 at 2.45 p.m. and this was witnessed by the

petitioner himself. Similar statement is made in the additional affidavit with

respect to distribution of sarees by respondent No.1 in Juggi Jhompri of Kusumpur

pahari.

5. The petitioner by way of an additional affidavit seeks to place on records the

lists of voters, whose names appear at two different booths of constituency No.AC-

45, Mehrauli, the voters whose names appear at two places in the same voter list,

and the list of voters whose names appear in the voters list of constituency AC-45

as well as in the voter list of other constituency.

6. The application for permission to place an additional affidavit on record has

been opposed by respondent No.1. It has been stated in the reply that the election

petition lacks material particulars and falls short of mandatory requirements of

Section 83 of the Representation of People Act. It is pointed out that the additional

affidavit was filed only after respondent No.1 filed IA No.7208/2010 under

Sections 83 and 86 of the Representation of People Act read with Order 7 Rule 11

of CPC for dismissal of the election petition on the ground that it does not contain

material particulars. It is also alleged that the additional affidavit has been filed in

a surreptitious manner without seeking permission of the Court. Another ground

on which respondent No.1 has opposed the application is failure of the petitioner to

explain the delay in filing the additional affidavit. The application has also been

opposed on the ground that the election petition is liable to be rejected for want of

material particulars and the petitioner cannot be led to fill up the lacunae in the

election petition, at this stage, by way of an additional affidavit which has been

filed without permission of the Court.

7. Section 83(1)(b) of Representation of People Act, 1951 provides that an

election petition shall set forth full particulars of any corrupt practice that the

petitioner alleges, including as full a statement as possible of the name of the

parties alleged to have committed such corrupt practice and the date and place of

the commission of each such practice. Section 86 of the Act mandates the High

Court to dismiss an election petition which does not comply with the provisions of

Section 81, 82 or 117. It would thus be seen that this Section does not provide for

an outright dismissal of the election petition for want of full particulars of the

corrupt practice required to be given in terms of Section 83(1)(b). Sub-section (5)

of Section 86 which is an enabling provision provides that the High Court may,

upon such terms as to costs and otherwise as it may deem fit, allow the particulars

of any corrupt practice, alleged in the petition, to be amended or amplified in such

manner as may in its opinion be necessary for ensuring a fair and effective trial of

the petition. However, the High Court is mandated not to allow any such

amendment which will have the effect of introducing particulars of a corrupt

practice not previously alleged in the petition.

8. Materials facts are primary or basic facts which the petitioner must

necessarily pleaded in the election petition. Particulars, on the other hand, are

details of the material facts pleaded in the petition. The particulars serve the

purpose of making the material facts more clear and more informative so that the

opposite party knows the case he is to meet during trial and is not taken by surprise.

The particulars thus are the evidence which the party concerned would be leading

at the time of trial.

9. In Samant Balakrishna etc. v. George Fernandez and Ors etc., (1969) 3

SCR 603, Supreme Court drew the following distinction between material facts

and particulars:-

"What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must

be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus 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."

In Balwan Singh v Lakshmi Narian & Ors. (1960) 3 SCR 91, there were

allegations of corrupt practice by way of hiring or procuring vehicles of the elected

candidate. The election petition was opposed on the ground that it lacked full

particulars as to contract of higher vehicles. A Constitution Bench of the Supreme

Court was called upon to consider the requirement of Sections 83 and 123 of the

Act in the light of allegations made in the election petition. Holding that the

election petition was not liable to be rejected for want of particulars of date and

place of hiring of the vehicles, the Court, inter alia, observed as under:-

"The practice to be followed in cases where insufficient particulars of a corrupt practice are set forth in an election petition is this. An election petition is not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged in the petition, are not set out. Where an objection is raised by the respondent that a petition is defective because full particulars of an

alleged corrupt practice are not set out, the Tribunal is bound to decide whether the objection is well founded. If the Tribunal upholds the objection, it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged; and in the event of noncompliance with that order the Tribunal may strike out the charges which remain vague. Insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition, but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence of the contesting parties is led on the plea raised by the petition, the petition cannot thereafter be dismissed for want of particulars, because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars."

In Raj Narain v. Indira Nehru Gandhi and Anr. (1972) 3 SCR 841,

Supreme Court, inter alia, held as under:-

"The charge of corrupt practice in an election petition is a very serious charge and has to be proved. It may or may not be proved. The allegations may be ultimately proved or not proved. But the question for the courts is whether a petitioner should be refused an opportunity to prove those allegations merely because the petition was drafted clumsily. Opportunity to prove should not be refused.

"Material facts" in Section 83 of the Representation of People Act, 1951 shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The function of the particulars is to present

a full picture of the cause of action so as to make the opposite party understand the case he has to meet. Under Section 86(5) of the Representation of People Act if the corrupt practice is alleged in the petition the particulars of such corrupt practice may be amended or amplified.

An election petition is not liable to be dismissed in limine because full particulars of corrupt practice alleged were not set out. If an objection was taken and the Tribunal was of the view that full particulars have not been set out, the petitioner has to be given an opportunity to amend or amplify the particulars. It is only in the event of non- compliance with such order to supply the particulars, that the charge which remained vague could be struck down.

Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed a rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it."

In K.K. Ramachandran Master v. M.V. Sreyamakumar and Ors. JT 2010

(6) SC 480, Supreme Court, inter alia, held as under:-

"The provisions of Section 83 (supra) have fallen for interpretation in several cases leading to a long line of decisions that have understood the said provisions to mean that while an election petition must necessarily contain a statement of material facts, deficiency if any, in providing the particulars of a corrupt practice could be made up by the petitioner at any later stage. The provision has been interpreted to mean that while a petition that

does not disclose material facts can be dismissed as one that does not disclose a cause of action, dismissal on the ground of deficiency or non- disclosure of particulars of corrupt practice may be justified only if the election petitioner does not despite an opportunity given by the Court provide the particulars and thereby cure the defect. We do not consider it necessary to refer to all the decisions delivered on the subject as reference to some only of such decisions should in our opinion suffice."

In Virender Nath Gautam v. Satpal Singh: (2007) 3 SCC 617, Supreme

Court held as under:-

"The High Court dismissed the petition inter alia on the ground that paras 8 (i) to (iv) lacked in material particulars. Apart from the fact that the law does not require material particulars even in respect of allegations of corrupt practice but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under Section 86 of the act, in the instant case, Clause (b) of Section 83(1) had no application and the petition has been dismissed by the High Court by applying wrong test. On that ground also, the order passed by the High Court is unsustainable [Vide Harkirat Singh v. Amrinder Singh: AIR2006SC713]."

In F.A. Sapa Etc. Etc., vs Singora and Ors. (1991) 3 SCC 375, Supreme

Court observed that once the amendment sought falls within the purview of

Section 86(5), the High Court should be liberal in allowing the same unless, in

the facts and circumstances of the case, the Court finds it unjust and prejudicial to

the opposite party to allow the same. Such prejudice must, however, be

distinguished from mere inconvenience. The Court was of the view that since

Section 86(1) which lays down that the High Court shall dismiss an election

petition which does not comply with the provisions of Section 81 or Section 83 or

Section 117 does not refer to Section 83, the Legislature did not view the non-

compliance of the requirement of Section 83 with the same gravity as in the case

of Section 81, 82 or 117.

10. The proposition of law which emerges from a perusal of the above-referred

decisions is that material facts are the primary facts which constitute the ground

on which the election can be set aside and, therefore, must necessarily be alleged

in the petition. No amendment can be allowed by the Court so as to plead an

additional material fact. If, however, the material facts have been alleged in the

petition, the Court will not be justified in dismissing the election petition on the

ground that details or particulars of those material facts have not been given in

the petition. If an objection is taken by the respondent that the petition lacks

material particulars, the Court ought to give an opportunity to the petitioner either

to amend the petition or to amplify the material facts alleged in the petition, by

giving the requisite particulars of the material facts already pleaded by him.

Another proposition of law which emerges from these judgments is that an

application seeking permission to give particulars cannot be rejected merely on

account of delay even if the period of limitation prescribed for filing the election

petition has expired by the time permission is sought to furnish particulars of the

material facts already supplied in the election petition.

11. In the case before this Court, the petitioner has specifically alleged in para

G of the grounds given in the election petition that 4621 invalid and duplicate

votes were wrongly created by respondent No.1 himself and with his consent by

his agents and workers and those invalid and void votes were polled in favour of

respondent No.1 and had materially affect the result of election. It is further

alleged that these voters had polled two or more times in the same constituency.

In para H of the grounds, it has been alleged that 11017 invalid and duplicate

votes were wrongly created by respondent No.1 himself and with his consent by

his agents and workers, of those voters who were also the voters in other

constituencies of Delhi. Regarding these votes also, it is alleged that they were

invalid and void votes polled in favour of respondent No.1 which had materially

affect the result of the election. It has been further alleged that these voters had

polled two or more times in the said constituency and in the other constituencies.

The material allegation made by the petitioner in this regard being polling

of votes two times by the same voters, those who had polled more than once in

the same constituency and those who had polled once in the constituency from

where respondent No.1 was declared elected and the other time in another

constituency. The material facts with respect to double polling of votes having

already been pleaded, the lists sought to be filed by the petitioner as Annexure

xiii to xvi only given particulars or evidence which the petitioner seeks to

produce in support of material fact already alleged in the petition, by furnishing

the list of the voters whose names appear in the voters list of more than one

polling stations in the same constituency, those whose names appear more than

once in the same voter list and the names of those whose names appear in the

voter list of constituency from where respondent No.1 was declared elected as

well as in other constituencies.

12. With respect to appealing to the voters in the name of race, community

and religion, the petitioner has alleged in Paragraph-B of the grounds that

respondent No.1 himself and his agents and workers with his consent had

appealed to muslim electors on ground of race, community and religion to vote

for him and to refrain from voting for the petitioner. It is further alleged that

respondent No.1 had visited Auliya Masjid, Mehrauli on 28.11.2008 at 12.00

noon to 1.00 p.m. and appealed to the muslim electors to vote for him on the said

ground and those statements were calculated to prejudice the prospects of the

petitioner's election and further the prospects of the election of respondent No.1.

By way of additional affidavit, the petitioner seeks only to give names of two

persons namely Abrar Ahmed and Rajinder Kumar, in whose presence the

respondent No.1 and his agents and workers are alleged to have appealed to the

muslim voters in the manner stated above. Thus, it cannot be said that the

petitioner did not plead material particulars in this regard in the election petition.

Regarding the alleged appeal to jat electors, the petitioner has alleged in the

petition that respondent No.1 visited Village Kishangarh on 27.11.2008 at 4.00 to

5.00 p.m. and made an appeal to the jat electors to vote for him on ground of race,

community and cast and to refrain from voting for the petitioner. By way of

additional affidavit, the petitioner has given the name of one Baljeet Singh, a

resident of Kishangarh as the person in whose presence the aforesaid appeal was

made to jat electors. Thus, here also, the material facts have already been pleaded.

With respect to procurement of vehicle for the voters, the petitioner has

alleged in the election petition that in the area of Vasant Kunj the agents and

workers of respondent No.1 had provided vehicles for conveyance of the electors to

polling stations No.19,22,30,31,34,37,38,45 and 71 to 79. The numbers of some of

the vehicles alleged to have been used by the agents and workers of respondent

No.1 to provide free conveyance to the electors have also been given in the election

petition. By way of additional evidence, the petitioner is seeking only to give the

name of the workers of respondent No.1 who are alleged to have engaged the

vehicles for conveyance of the voters in Vasant Kunj area. Therefore, material

facts with respect to the allegations of procurement of vehicle for the conveyance

of the voters have already been pleaded in the election petition and only the names

of the persons who engaged the vehicles are sought to be given.

Regarding distribution of liquor and sarees in Kusumpur Pahari area, it has

also been pleaded in the petition that respondent No.1 on 16.11.2008, at 2.45 p.m.

to 3.30 p.m., as well as his agents and workers, with his consent had distributed

liquor to the voters. It is further alleged that they have also distributed gifts in the

form of sarees in Jhuggi Jhopri area in Kusumpur area at 7.30 p.m. to 10.00 p.m.

on 28.11.2008. By way of additional affidavit, respondent No.1 seeks to plead that

distribution of liquor and sarees was witnessed by the petitioner himself. Here

also, material particulars with respect to the alleged corrupt practice have already

been pleaded in the election petition and now only the name of the witness in

whose presence the corrupt practice is alleged to have been committed is sought to

be given.

13. Since the additional affidavit sought to be filed by the petitioner is by way of

particulars of the material facts already pleaded in the election petition and no

additional material fact is sought to be pleaded by way of the additional affidavit,

there is no good ground to reject the prayer made by the petitioner, seeking

permission to place the additional affidavit on record. It is settled proposition of

law that at the stage of considering amendment of pleadings, the court cannot go

into the truthfulness or otherwise of the averments sought to be made by way of the

proposed amendment. Similarly, while considering an application seeking

permission to file an additional affidavit by way of elucidation or amplification of

the material facts already pleaded in the election petition, the Court cannot go into

the truthfulness of the averments made in the additional affidavit. As held by the

Supreme Court in the cases referred herein above, an election petition which gives

material facts but lacks in particulars with respect to those material facts cannot be

rejected on account of lack of particulars, without giving an opportunity to the

petitioner to amend the petition so as to give such particulars. It, therefore,

becomes rather obligatory for the Court, to allow an amendment or amplification

by giving particulars, to the extent those particulars pertain to the material facts

already pleaded in the election petition.

It is true that the petitioner has not given a convincing explanation for the

whole of the delay in filing this application seeking permission to file an additional

affidavit, but, as noted earlier, the delay in seeking amendment of an election

petition or for that matter delay in making request to file an affidavit by way of

amplification of corrupt practice already pleaded in the election petition, by itself is

not a good ground to reject such an application, particularly when no prejudice is

shown to have been caused to the respondent on account of the delay in filing the

application.

14. The learned counsel for defendant No. 1, while opposing the application, has

relied upon Mahendra Pal v. Ram Dass Malanger and Ors. AIR 2000 SC 16 as

well as the decision of Supreme Court in Samant Balakrishna (supra). In

Mahendra Pal (supra), Supreme Court, inter alia, held as under:-

"Facts which are essential to disclose a complete cause of action are material facts and are essentially required to be pleaded. On the other hand "particulars" are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. The function of particulars is, thus, to present a full picture of the cause of action to make the opposite party understand the case that has been set up against him and which he is required to meet. The distinction between „material facts‟ and „material particulars‟ is indeed important because different consequences follow from a deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck of f under Order 6, Rule 16, CPC. In the case of a petition suffering from deficiency of material particulars the Court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. Thus, whereas it may be permissible for a party to furnish particulars even after the period of limitation for filling an election petition has expired, with permission of the Court, no material fact unless already pleaded, can be permitted to be introduced, after the expiry of the period of limitation."

This judgment, to my mind, does not help respondent No. 1 once it is held

that the averments made in the additional affidavit of the petitioner constitute

particulars and not material facts and in this case also Supreme Court has clearly

upheld the power of the High Court to allow the supply of the particulars even

after the period of limitation prescribed for filing the election petition has

expired.

In Samant Balakrishna (supra), Supreme Court held that 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 to think that the charge has been made or can be later amplified. It

was observed that the power of amendment is given in respect of the particulars,

but there is prohibition against the amendment which will have to effect of

introducing particulars of the corrupt practice not previously alleged in the

petition. This judgment would be of no held to respondent No. 1 once it is found

that the averments made in the additional affidavits are by way of particulars of

corrupt practices, material facts pertaining to which have already been pleaded in

the petition.

15. For the reasons stated herein above, the application is allowed, subject to

payment of Rs.50,000/- as costs and the additional affidavit is taken on record.

Respondent No.1 is granted two weeks' time to file an affidavit in reply to the

additional affidavit filed by the petitioner.

This application stands disposed of accordingly.

El. PET. No.12/2009 and IAs 7208/2010 (under Section 83 & 86 of the Representation of Peoples Act), 9609/2010 (under Section 151 CPC), 9610/2010 (under Section 151 CPC for submitting list of witnesses)

List on 20.04.2012.

V.K.JAIN, J

MARCH 21, 2012 bg/RS