Hardwari Lal Vs. Kanwal Singh [1971] INSC 338 (7 December 1971)

RAY, A.N.

HEGDE, K.S.

GROVER, A.N.

CITATION: 1972 AIR 515 1972 SCR (3) 742 1972 SCC (1) 214

CITATOR INFO :

R 1972 SC1302 (19,20) F 1975 SC1788 (6) RF 1976 SC 744 (34) RF 1976 SC1187 (6) RF 1985 SC 236 (66) R 1986 SC1253 (10,14,18) F 1987 SC1577 (28) R 1990 SC1731 (10)

ACT:

Representation of the People Act, 1951 s. 123(7)--Corrupt practice of obtaining assistance etc. from a Government servant--What constitutes--When material particulars are not supplied the petition must be dismissed.

HEADNOTE:

The appellant was declared elected to the Haryana Legislative Assembly from Bahadurgarh constituency. The respondent challenged the election on various grounds. in para 16 of the election petition it was alleged that the appellant was guilty of the corrupt practice mentioned in s.

123(7) of the Representation of the People Act. 1951 inasmuch as he had written letters to six Government servants seeking their assistance in the election. The High-Court framed issue No. 5 to deal with this allegation.

The appellant applied to the High Court for further particulars to be supplied by the respondent in support of his allegations in para 16 but the application was rejected.

The High Court held the appellant guilty of the said corrupt practice and declared his election void. The appellant appealed to this Court by special leave. The question that fell for consideration was Whether the petition was not maintainable in view of the appellant's contention that material particulars in support of the allegation of corrupt practice which was the Subject-matter of Issue No. 5 had not been supplied.

HELD : The different expressions used in s. 123(7), namely, obtaining,,. Procuring, 'abetting or attempting to obtain or procure is various forms of corrupt practice. It has to be found as to whether the allegation of obtaining assistance amounts to an allegation of fact. It is well settled that general expression like 'fraudulently', 'negligently' or 'maliciously' in pleadings do not amount to allegations of fact. [746 H] In the present case the allegations in para 16 of the election petition did not amount to any statement of material fact of corrupt practice. It was not stated as to what kind or form of assistance was obtained or procured or attempted to be obtained or procured. It was not stated from whom the particular type of assistance was obtained or attempted to be obtained or procured. It was not stated in what manner the assistance was for the furtherance of the prospect of the election. The government of the charge of corrupt practice is obtaining or attempting to obtain or procure any assistance other than the giving of a vote. In the absence of any suggestion as to what the assistance was the, election petition was lacking in the most vital and essential material fact to furnish a cause of action. It did not amount to an election petition on grounds mentioned in s. 123 (7) of the Act and was therefore liable to be dismissed. [750 F-G] The fact that s. 83 under which material particulars are required to be supplied is not mentioned in s. 86 as one of the sections non-compliance with which must result in dismissal of the petition cannot lead to a contrary conclusion. Under s. 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable tinder the Code of Civil Procedure 1908 to the trial of 743 Suits. A suit which does not furnish cause of action can be dismissed, [750H-751A] Samat N. Balakrishna etc. George Fernandex & Ors., [1969] 3 S.C.R. 603, Manubhai nandlal Amersey v. Popatlal Manilal Joshi & Ors., [1969] 3 S.C.R. 217 and Harish Chandra Bajpai

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 129 of 1971.

Appeal under S. 116-A of 'the Representation of the People Act, 1951 from the Judgment and Order dated December 24, 1970 of the Punjab and Haryana High Court in Election Petition No. 1 of 1970.

Appellant appeared in person.

Anand Swaroop , Janardan Sharma and S. K. Nand.v, for the respondent.

The Judgment of the Court was delivered by Ray, J. This is an appeal under section 11 6-A of the Representation of the People Act (hereinafter referred to as the Act) from the judgment and order dated 24 December, 1970 of the High Court of Punjab and Haryana setting aside the election of the appellant.

The appellant was declared elected to the Haryana Legislative Assembly from Bahadur garh Constituency. The polling took place on 7 June, 1970. The result was declared on 8 June. The appellant obtained 22436 votes. The respondent obtained 17760 votes.

The respondent challenged the appellant's election on numerous grounds.

The election petition was filed on 23 July, 1970. The written statement Was filed on 2 September, 1970. Seven issues were framed at the trial on various allegations to corrupt practice. After the conclusion of evidence the petitioner gave up pleas giving rise to issues No. 1 and 2. Issues No.

3(i), (iv), and (vi) were also given up. Issues No. 3(ii), 3(iii), 3(v) and 3(vii) were pressed and the court decided the entire issue No. 3, against the election petitioner.

Issues No. 4(a) and (b) were decided against the election petitioner. Issue No. 5 was held to be proved only relating to Chand Ram Rathi and the remaining issues were found not to be proved. Issue No. 6 was consequential on issue No. 5 and inasmuch as the election petitioner, called in question only the election of the appellant and did not claim any declaration either that the petitioner or any other candidate bad been elected, no question of declaration under section 744 101 of the Act arose. Issue No. 7 was answered by holding that the appellant was guilty of commission of corrupt practice under section 123(7) of the Act. The High Court, therefore, declared the election of the appellant to be void and held the appellant guilty of the commission of corrupt practice under section 123(7) of the Act and awarded costs amounting to Rs. 2000/-.

The election petition succeeded only on issue No. 5. Issue No. 7 was the consequential relief. Issue No. 5 related to paragraph 16 of the petition and allegations as to corrupt practice within the meaning of section 123(7) of the Act.

The only question for determination in this appeal is whether the election petition was maintainable in regard to allegations against the appellant under section 123(7) of the Act, which were comprised in issue No. 5.

The allegations in paragraph 16 of the petition were as follows: "That the respondent committed the corrupt practice of obtaining and procuring or attempting to obtain and procure the assistance for the furtherance of the prospects of his election from the following persons who are in the service of the Government and belonging to the prohibited classes within the meaning of section 123(7) of the Act;

1. Shri Chand Ram Rathi, Lecturer in Political Science, Government College, Gurgaon.

2. Shri Gulab Singh, B.A., B.Ed., Government High Court, Jaharsa (Gurgaon).

3. Pt. Bhim Singh, Assistant Sub-Inspector, Police Security Lines, Lytton Road, New Delhi.

4. Ch. Chhattar Singh, M.A., B.T. Teacher V. & P.O. via Bahadurgarh, District Rohtak.

5. Ch. Mukhtiar Singh, Inspector of Police, Delhi.

6. Ch. Raghbir Singh, M.A., B.T., Bahadurgarh.

The respondent has written letters under his own signatures to the above Government servants soliciting their help and assistance in furtherance of the prospects of his election".

The appellant submitted preliminary objections. These were inter alia that paragraph 16 (4 the petition was liable to expunction "for it does not give the necessary particulars about the nature of assistance and the place and the date where and when such assistance was sought or received from the persons named in the petition". The appellant further dealt with paragraph 16 by denying the allegations.

745 The High Court by an order dated 11 September, 1970 dealt with the preliminary objection. As to allegations in paragraph 16 of the election petition the High Court said that in form BB filed by the election petitioner particulars of letters written by the appellant to the various persons mentioned therein had been given at Serial Numbers 3 to 8.

Dates of the letters and the script in which they were written and the persons to whom they were addressed had been mentioned in those items. Counsel on behalf of tile appellant contended before the High Court that the letters should either be produced or details of their contents should be disclosed so as to enable the appellant to find out whether or not the assistance alleged to have been sought from the addressees of those letters was or was not sought for the furtherance of the prospects of the appellant in election. The High Court said that the election petitioner could not be expected to be in possession of letters and in the nature of thing it would not be possible for the election petitioner to change the contents of letters and if and when the letters were produced or admitted or proved, it would be a mere matter of argument whether the writing of the letters did or did not fall within the corrupt 'practice defined in section 123(7) of the Act. The High Court declined to allow further or better particulars asked for by the appellant.

At the trial Chand Ram Rathi whose name was mentioned in item No. 8 in form BB annexed to the petition as one of the persons to whom the appellant had written a letter was examined on behalf of the election petitioner on 3 December, 1970. The election petitioner was also examined on 3 December, 1970. The oral evidence of the election petitioner was concluded on 4 December, 1970. On the same day, the appellant was examined by the Court under Order 12.

Rule 3 (a) of the Code of Civil Procedure as to whether the appellant had written the letter marked Ex. P.W. 34/1 to Chand Ram Rathi. On the same day, the appellant asked for an order to recall Chand Ram Rathi. One oil the rounds given by the appellant to recall the witness was to put a letter dated 27 May, 1970 written by Chand Ram Rathi to the appellant. The High Court declined to accede to the prayer of the appellant on the ground that recalling the witness for province the letter dated 27 May, 1970 written by Chand Ram Rathi to the appellant would be to contradict the statement of Chand Ram Rathi and to show that he was not a truthful witness.

The High Court relied on the oral evidence of Chand Ram Rathi to whom the appellant had written a letter and held that the appellant was guilty of corrupt practice within the meaning of section 123 (7) of the Act.

746 The appellant appeared in person in this Court. The appellant raised these contentions. Paragraph 16 of the election petition did not contain statement of material facts to amount to any allegation of corrupt practice against the appellant. The High Court declined to order particulars. The High Court allowed oral evidence to be adduced by the election petitioner in the absence of any pleading of material facts alleging ,corrupt practice within the meaning of section 123(7) of The Act. Therefore, the appellant contended that first there was no pleading, secondly, particulars were not allowed to give the appellant an opportunity of knowing the case; and, thirdly, the High .Court allowed proof of matters of which there was no foundation .in the pleadings.

Counsel on behalf of the election petitioner on the other hand .contended.t contended that the allegations were that the appellant had sought assistance from Government servants for the furtherance of the ,prospects of the appellant's election and particulars of letters were given and therefore the election petitioner alleged material facts and proved the same in support of the allegations.

Under section 83 of the Act an election petition (a" shall .,contain a concise statement of the material facts on which the petitioner relies, (b) shall set fourth 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. It is manifest that the election petition shall not only contain material facts but also set forth particulars of corrupt practice.

Section 123(7) of the Act is as follows "The obtaining or procuring or abetting 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".

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 well settled that general expressions 747 like 'fraudulently' 'negligently' or 'maliciously' in pleadings do not amount to any allegation of fact. A fact is after all not a mere word.

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 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 candidates 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 candidates 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.

Therefore, material facts are to be alleged as to whether the candidate obtained or procured or abetted or attempting to obtain or procure any assistance other than the giving of vote. In paragraph 16 of the election petition it is alleged that the appellant committed the corrupt practice or 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 paragraph 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 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 748 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 assis tance 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 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 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.

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 etc. v. George Fernandes & Ors. etc. (1969) 3 S.C.R. 603. 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 calm 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 be will have to meet. Fourth, material facts and particulars are distinct matters.

Material facts will mention statements of fact in 749 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 circulars 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 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 statement,% of facts.

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 Manilal Joshi & Ors., (1969) 3 S.C.R. 217. 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 gave leave to the election petitioner to amend the petition by adding fresh particulars of the corrupt practice. Bachawat, J. speaking for the court said that section 83 of the Act was mandatory and particulars of corrupt practice were to set out in full. It was said in that case that no amendment in the shape of particulars of corrupt practice was permissible if the corrupt practice was not previously alleged in the petition. The obvious need not be stressed. It is that an election petition has the effect of declaring an election void. It is a serious remedy. It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or pro cure assistance are extracting 'words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by: counsel for the respondent that because 750 the statute did not render the giving of vote a corrupt practice the words 'any assistance' were full statement of material fact. The submission is fallacious for the simple reason that the matter of assistance, the mode of assistance, the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared could the court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action.

The necessity of clear and precise allegations to support a plea of corrupt practice was emphasised by this Court in Harish Chandra Bapai & Anr. v. Triloki Singh, 12 Election Law Reports 461. Venkatarama Ayyar, J. speaking for the court in dealing with the powers of the court to allow amendment in respect of illegal or corrupt practice said that where the allegation in the election petition 'in regard to the corrupt practice was that the respondents could in furtherance of their election enlist the support of Government servants, the words 'could enlist' did not amount to an averment that in fact they enlisted their support. In other words, it was observed that the word 'could enlist' did not allege a fact which happened. Therefore, the happening of a fact as well as the fact itself is material.

Judged by that test in the present case there is no allegation which will amount lo any averment of any assistance as a fact in the absence of the kind of assistance being set out as a fact.

The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to which kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen 'of the charge of corrupt practice within the meaning of section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.

Counsel on behalf of the respondent submitted that an election could not be dismissed by reason of want of material facts because section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with 751 the provisions of section 81, or section 82 or section 117 of the Act. It was emphasized that section 83 did not find place in section 86. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil procedure, 1908 to the trial of suits. A suit which does not furnish cause of action can be dismissed.

In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act.

For these reasons the judgment of the High Court is set aside The appeal is allowed. The election petition shall stand dismissed. The parties will pay and bear their costs in this appeal.

G.C. Appeal allowed.