Govind Singh Vs Harchand Kaur
JUDGMENT
GYAN SUDHA MISRA, J.
1. This appeal has been preferred under Section 116A of the Representation of People Act, 1951 (hereafter referred to as the Act of 1951) assailing the Judgment and Order of the High Court of Punjab and Haryana dated April 28,2006 delivered in Election petition No. 22/2002 as a consequence of which the election of the appellant, Govind Singh as MLA to the Punjab Legislative Assembly held on February 13, 2002 from the reserved 82-Sherpur (S.C.)Assembly Constituency was declared void and hence was set aside awarding a cost of Rs.50,000/- to the respondent Smt. Harchand Kaur.
2. 2. The election of the appellant was challenged by the respondent- Smt. Harchand Kaur who is the defeated candidate and although she had secured third position in the polling, she challenged the election of the appellant alleging corrupt practice against him within the meaning of Section 123 (1) (A) of the Act of 1951.
3. The essential details of the Election petition which formed the basis of challenge to the election of the appellant, disclose that on June 26, 2001 the Governor of Punjab issued a notification under Section 15 of the Representation of People Act, 1951 calling for election of MLAs from all constituencies in Punjab to constitute the Punjab Legislative Assembly. The appellant-Govind Singh, at the relevant time was functioning as a Minister of Social Security, Women and Child Development and the party in power to which the appellant belonged was Shiromani Akali Dal (Badal). However, the appellant admittedly resigned on January 12, 2002 from the primary membership of Akali Dal as he was denied party ticket to contest the election from the said Assembly Constituency. The Election Commission published the election schedule which stated that the last date for filing nomination would be January 23, 2002 and the date for scrutiny of nominations was fixed for 24.01.2002. The schedule further indicated that the last date for withdrawal of candidature would be January 28, 2002 after which the poll was to be held on February 13, 2002 and finally the counting of votes on February 24, 2002.
4. In view of the aforesaid schedule fixed by the Election Commission, the appellant - Govind Singh and nine others filed nominations for contesting the election for the reserved 82-Sherpur (S.C.) Assembly Constituency. The appellant had filed nomination as an independent candidate since he had resigned from the membership of the Shiromani Akali Dal (Badal) party.
5. 5. The election to the concerned constituency was held as per schedule on13th February, 2001 and the process was finally complete on February 24, 2002after counting of the votes when the appellant was declared elected to there served 82-Sherpur (S.C.) Assembly Constituency since he had securedhighest number of votes which was 30132. The nearest rival to the returned candidate i.e. the appellant-Govind Singh, was Piara Singh of the Shiromani Akali Dal (Badal) in whose favour 26525 votes had been polled and the contesting respondent - Smt. Harchand Kaur secured third position in whose favour 19439votes had been polled. The total number of votes polled was admittedly 90882 in the Assembly Constituency where all these three candidates had contested.
6. The Respondent - Smt. Harchand Kaur, having been defeated in the election felt aggrieved of the election result as she apprehended, which obviously was a late realisation on her part to the effect that the elected candidate i.e. the appellant herein, Govind Singh, had indulged in corrupt practices in the election process due to which she could not emerge as a victorious candidate. This prompted her to file an Election petition in the High Court of Punjab and Haryana bearing Election petition No. 22/2002 wherein she challenged the petitioner's election alleging illegal acts of omission and commission at the instance of the appellant which amounted to indulgence in corrupt practice within the meaning of Section 123 (1) read with Section 100 (1) (b) of the Act of 1951.
7. Elaborating the details of her alleged plea of corrupt practice on the basis of which the respondent Smt. Kaur had filed the Election petition in the High Court challenging the election of the appellant -Govind Singh, it was stated that there turned candidate while holding the charge of Social Security Minister in the State Cabinet misused his power with an intention to gain benefit in the election2002 violating the procedure as he sanctioned and released the old age/widow/handicapped pensions in favour of the residents of Sherpur Constituency and this was clearly with a view to secure votes of the electorates in the ensuing election. A list of 16 persons with their addresses was furnished along with a few forms pertaining to those persons indicating that the petitioner had sanctioned their pension directly.
8. The respondent herein Smt. Harchand Kaur further alleged that there turned candidate, the appellant herein, while holding the post of Cabinet Minister in charge of Social Security Department misused his power and got various women voters of his Constituency employed as Anganwadi Workers for the period upto 28.2.2002 and they were employed in service with a motive tocompel them to undertake the work of his election and cast their votes as also manage other votes in his favour in the constituency in the election scheduled to be held on 13.2.2002. A list of 13 women with their addresses was given along with the true translated copy of one such appointment letter. Relying on these facts, the respondent alleged that the appellant is guilty of committing corrupt practice with a view to secure votes in the election which is covered under Section 123 of the Act of 1951.
9. The Respondent Smt. Harchand Kaur levelled a third allegation also alleging corrupt practice by stating that the returned candidate Govind Singh- the Appellant herein, distributed money among the voters in exchange of their promise to vote for him directly as well as through his agents with his consent in the presence of respectable village persons who stood surety on their behalf. The appellant had also promised to facilitate construction of drains and many pacca pavements and streets in case he was voted and emerged as a victorious candidate. Elaborating further on this aspect, the respondent herein alleged that the appellant Shri Gobind Singh paid cash at various places for getting votes a informed by the respectable persons of that area, namely, Avtar Singh, S/o Baldev Singh, Balbir Singh, S/o Budh Singh, both r/o village and Post Office adda, Tehsil Dhuri, District Sangrur; Jaspal Singh, Sarpanch village BirMamgarh, Tehsil Malekotla, District Sangrur and Ramzan Khan Sarpanch, villageJatewal, Tehsil Malerkotla district Sangrur. However, only Balbir Singh out ofthese persons was cited in the list of witnesses filed later on by the respondent in her Election petition. He was subsequently cited as a witness who could not prove the allegation of cash for votes but was cited as a witness only to prove the allegation that the petitioner had delivered speeches at various places to promote enmity on the ground of religion. He, however, was finally never examined by the respondent.
10. Thus, the sum and substance of the entire allegations levelled by the defeated candidate Smt. Harchand Kaur - the respondent herein, is to the effect that the appellant-returned candidate Shri Gobind Singh with the active support of his supporters indulged in corrupt practice and offered bribery in the form of gift and promise to give cash to those who voted in his favour. This vitiated the election and hence he is guilty of committing corrupt practice which is covered under Section 123 (1) A (b) and B (b) of the Act of 1951 due to which the election held on 13th February, 2002 deserves to be quashed and set aside since the corrupt practice at the instance of the appellant is covered under Section 123 of the Act of 1951.
11. The appellant Shri Singh responded to the Election petition by filing his written statements to the petition on August 12, 2002 wherein he initially took the preliminary objection that no material facts and material particulars had been pleaded in the petition concerning the allegations of corrupt practice and no time, date and place had been mentioned and hence the contents were liable to best truck off as no cause of action was disclosed by the petitioner/respondent herein. It was further averred that no attested or true copy of the Election petition had been served on the petitioner nor the verification of the petition was done as per the 1951 Act as well as the Code of Civil Procedure due to which the same was also defective as the affidavit had not been filed in support of the allegations of corrupt practice, in terms of the requirements of the Act of 1951. In so far as the merits of the allegations in the petition are concerned, they were denied and it was clarified that the returned candidate / the appellant herein had already resigned from the Government as Minister of Social Security as also from the primary membership of the Shiromani Akali Dal on January 12, 2002. The appellant submitted that the sanction or release of pensions was done by the District level authorities and the appellant who was then a Minister at the most, had recommended acceptance which was always subject to the legal norms for such pension. It was further stated that all the documents annexed by the respondent with her Election petition in the High Court pertained to the period2001, and therefore, were irrelevant to the period of the election that is January23, 2002 to February 24, 2002. The pass books of the pension receivers annexed by the respondent merely showed the normal flow of pensions into the pension accounts in 2001 without even a statement that these were sanctioned by the petitioner in 2002 since this was inherently impossible after his resignation. It was further stated therein that none of the allegations contained the relevant material facts and the material particulars as to the date, time and place which could substantiate the allegation.
12. The Respondent Smt. Harchand Kaur thereafter filed rejoinder to the written statement wherein the facts stated in the Election petition were reiterated in order to contend that the appellant in fact indulged in corrupt practice to ensure his victory in the election.
13. 13. The learned single Judge on the aforesaid case and counter case of the contesting parties initially framed as many as nine issues but ultimately confined to the following issues: Whether the respondent is guilty of corrupt practices committed by him or with his consent as enumerated 8 in paras No. 12,13,14,17,18, 19, 20, 21, 22, 23, 24, 25 and 26 which materially affected the result of election and his election deserves to be set aside.6. Whether any corrupt practice (bribery, offer any gift or money as a reward to an Elector for having voted or refrain from voting, gives a gratification to any person with the object of inducing him to exercise any other Elector right) has been committed by returned candidate or his election agent or any other person with the consent of a returned candidate or his election agent under Section 123 of the Representation of the People Act, 1951?7. Whether disbursement of money under the pretext of old age pension etc. between the day of nomination and polling day by the returned candidate or by his consent by other persons through department of Social Security Women and Child Development, of which he was a Minister, to induce the electors in his constituency to vote for him, amounts to a corrupt practice under Section 100(1)(b)?9. Whether the returned candidate himself or on his behalf or with his consent, large number of fresh appointments as Anganwari workers were issued for specific period, by the department of Social Security Women and Child Development to induce the voters in his constituency to vote for him and thus committed a corrupt practice under the Act?
14. Thus, the High Court although initially framed nine issues on the basis of the Election petition filed by the Respondent, the same was eventually confined to the challenge to the election of the returned candidate only on the ground of corrupt practices as envisaged under Section 123 (1) read with Section 100 (1)(b) of the Act of 1951 wherein `bribery' has been considered to be a corrupt practice i.e. any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly inducing him to vote or refrain from voting at an election or as a reward to an election for having voted or refrain from voting. Hence, the analysis of oral and documentary evidence made by the High Court has been confined to the issues nos. 5, 6, 7 and 9 quoted herein before as to whether the returned candidate is guilty of corrupt practices alleged against him or has been committed by him or his election agent or any other person with the consent of the returned candidate-the appellant herein. The analysis made by the High Court also indicated that it took into consideration issue no. 7, as to whether disbursement of money under the pretext of old age pension etc. between the day of nomination and polling day by the returned candidate or with his consent by other persons through The Department of Social Security Women and Child Development of which he was a Minister, induced the electorate in his constituency to vote for him so as to bring it within the ambit and scope of corrupt practice laid down under Section 100 (1) (b) of the Act of 1951.
15. The High Court further proceeded to consider issue no. 9 as to whether the returned candidate himself or on his behalf or with his consent, large number of ladies were recruited as fresh Anganwadi Workers for a specific period by the Department of Social Security women and Child Development in order to induce the voters in his constituency to vote for him and thus committed a corrupt practice under the Act.
16. The learned single Judge of the High Court who tried the Election petition therefore scrutinized the oral evidence led by the contesting parties as also the documents produced and on its scrutiny in the light of the submissions advanced by the contesting parties, recorded a finding that the returned candidate/the appellant Gobind Singh had used the tool of payment of pension to bribe the voters. The learned Judge went on to record that the election petitioner had succeeded in establishing that the returned candidate had committed corrupt practice within the meaning of Section 79 (2) of the Act by inducing the voters to vote for him in consideration of payment of cash named as pension on 10.2.2002,11.2.2002 and 12.2.2002 when the polls were to be held on 13.2.2002. The learned Judge further found considerable merit in the submission of the election petitioner-the respondent herein to the effect that the case concerning corrupt practices had been sufficiently pleaded in the Election petition at paras 17 to 21,24, 26 and 30. The learned Judge further proceeded to observe that the affidavit in the prescribed form in support of the allegations of corrupt practice and the particulars thereof which was required to be attached with the petition, had also been done. The learned single Judge was therefore of the view that the broad and basic features of the case of the election petition stands established and the corrupt practice committed by the returned candidate is fully covered by Section 123 (1) (A) of the Act. The money in the name of pension was presented as a gift to the voters directly for inducing the voters to vote in favour of the returned candidate which would be clearly covered by the aforementioned provision of theAct.
17. The High Court was further pleased to observe that the resignation of the appellant from the Cabinet or from the primary membership of the Shiromani AkaliDal had no connection with the distribution of cash in the name of pension on10.2.2002, 11.2.2002 and 12.2.2002 when voting was to take place on 13.2.2002.Hence, the election of the returned candidate to 82-Sherpur (SC) Assembly Constituency to which the appellant Gobind Singh had been declared elected was declared void and consequently was set aside. It was, therefore, directed that the Election Branch of the Registry with regard to the disqualification of there turned candidate to contest any further election be communicated. The Election petition thus was allowed with cost which was determined at Rs.50,000/-.
18. The returned candidate Shri Govind Singh-the appellant herein, obviously felt aggrieved with the judgment and order of the High Court setting aside his election and hence has preferred this appeal assailing the judgment and order of the High court. However, we were informed that during pendency of this appeal the appellant has already completed his term as a member of the Legislative Assembly but this appeal could not be treated as infructuous since the appellant is bound to suffer the consequence of disqualification on account of the setting aside of his election on the alleged indulgence in corrupt practice in the previous election which will affect his candidature to contest any election in future.
19. 19. Assailing the judgment and order passed by the High Court, it was submitted at the threshold by learned senior counsel for the appellant- Shri Hansaria, that the allegation of the respondent herein, while challenging the election of the appellant, relates to the acts attributed to the appellant as Minister prior to filing his nomination on 23.1.2002 as in paragraphs 17, 18 and 19 the respondent alleged that the appellant Shri Gobind Singh got released pension to various persons by misusing his position as a Minister, Social Security Department. In paragraph 20, it has been alleged that the appellant misused his power as Social Security Minister and violated the procedure in sanctioning/releasing the old age/widow/handicapped persons. In para 21 of the election petition, the Respondent has further alleged that the appellant being the Cabinet Minister holding the charge of Social Security Department misused his power and got various women voters of his Constituency employed as anganwadi workers.
20. 20. In order to demolish the case of the respondent, a sure shot argument advanced by the counsel for the appellant was that none of the aforesaid allegations even if assumed to be correct - although the same are disputed, would amount to corrupt practice within the meaning of Section 123 (1) (A) of the Act asthose acts related to the period when the appellant was holding the charge of the Social Security Minister and the acts were in discharge of his official duties which was perfectly legal and justified. In support of this submission, reliance was placed by the learned counsel on the decision delivered in the matter of Mohan Rawale v. Damodar Tatyaba @ Dadasaheb,1994 (2) SCC 392, wherein it was held that any allegation made with reference to a period prior to nomination as a candidate, does not amount to corrupt practice. It was submitted that in the instant case, the appellant resigned as a Minister on 12.1.2002 and became a candidate for the election only on 23.1.2002 when he filed his nomination for contesting the election as an independent candidate. Hence, it was contended that any act attributed to the appellant in his capacity as a Minister, even if assumed to be correct, although the same are disputed, would not come within the ambit of the allegation of indulgence in corrupt practice. It was further averred that the sanction, approval or grant of pension by a Minister does not amount to bribery under clause (1) of Section 123 of the Act as it is not a gift, offer or promise of any gratification which is sine qua non for attracting the said provision. It was still further submitted that the act of approval of appointment of some women as anganwadi workers by a Minister is also not covered by the provision of Section 123 of the Act as there is no evidence on record, either oral or documentary, that the appellant appointed any anganwadi workers. The only material relied upon by the respondent in this regard is Exhibit PW-1/46 to PW-1/70 which are applications for appointment of anganwadi workers. In any event, all these 25 applications except 6 of them (Ext. PW-1/52,58,62,66,68and 69) are undated. Even the 6 applications which bear date are from22.2.2001 (Ext. PW1/62) to 24.12.2001 (Ext.PW1/69), i.e. prior to the appellant becoming a candidate in the election. In addition, only 2 of 25 applications (Ext.PW-1/50 and 70) bear endorsement by the appellant and both of them are undated. There is also no whisper in paragraphs 17 to 21 that the appellant distributed any amount in cash by way of pension.
21. While challenging the finding recorded on corrupt practice, it was further elaborated that the averments made at paragraph 24, 26 and 30 are vague and lack in material facts with full particulars as section 83(1) (a) (b) of the Act mandates that Election petition must contain material facts and if there are allegations of corrupt practice, it must also contain full particulars. This is the mandatory requirement of law and no election petition can be entertained without full particulars of material facts. In order to substantiate this contention, it was stated that in paragraph 24, 26 and 30 alleging that the appellant distributed money in cash amongst voters, no particulars about the date, time and place where money was allegedly distributed, nor the name of the people to whom it was distributed have been mentioned. It was, therefore, contended that the averments are vague, general and omnibus and hence the averments relating to allegation of corrupt practice made in paragraph 24, 26 and 30 cannot be looked into and are fit to be ignored. Reliance was placed by the learned counsel in support of this submission, on the ratio of judgments delivered in the matter of Ram Sukh Vs. Dinesh Aggarwal reported in 2009 (10) SCC 541, Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar reported in 2009 (9) SCC 310,Ananga Uday Singh Deo Vs. Ranga Nath Mishra & Ors. Reported in 2002(1) SCC499 and Azhar Hussain Vs. Rajiv Gandhi reported in 1986 (Supp) SCC 315. It was still further submitted that material facts as well as material particulars have not been supplemented by the respondent election petitioner in spite of specific objection taken by the appellant in preliminary objections 1 and 2 and the respondent having opportunity to supplement and amplify the material facts and particulars not doing it could not have been allowed to adduce evidence beyond the pleadings as the evidence which is led beyond the pleadings, is liable to beignored.
22. 22. Objections have also been raised by the returned candidate-appellant herein by placing reliance on Section 83 (1) (c) of the Act on the plea that this provision requires that every petition shall be verified in the manner laid down in the CPC and proviso thereof requires filing of an affidavit in the prescribed form in support of the allegation of corrupt practice. Order VI Rule 15 (2) CPC requires that the persons verifying shall specify, by reference to numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information and believed to be true. Rule 94A of the Conduct of Election Rules,1961 provides that the affidavit in terms of proviso to Section 83 (1) shall be in Form 25. Form 25 requires the Election petition to separately state which allegations of the corrupt practice are true to his knowledge and which allegations are true to his information. On these averment, it was submitted that the respondent in the present case has stated in the verification of the Election petition, that the contents of paragraph 17, 18, 20, 21, 24 and 30 are true to his knowledge as well as information and contents of paragraph 19 and 26 are true and correct being reproduction/reference to the provisions from the Representation of People Act/Constitution of India/Registration of Electors Rules,1960. It was, therefore, submitted that such a verification is no verification in the eye of law as the same facts cannot be both true to knowledge and also true to information. It was further stated that paragraph 19 has not been verified at all as the said paragraph does not contain any reproduction/reference of any provision of law; whereas this paragraph contain specific averment regarding release of pension by the appellant to ineligible persons.
23. In substance, it was contended that the issue of defective verification and affidavit in the written statement in paragraph 4 and 5 are specific issues which were framed by the High Court being issue No.3 and 4 as preliminary issues. Yet, the High Court proceeded to record evidence without deciding the aforesaid preliminary issues and recorded finding on merits. It was, therefore, sub mitted that merely because the High Court has considered the case on merits, the same is no ground to ignore defective pleading, verification and affidavit in the Election petition so as to consider the evidence on merits. In support of this submission, reliance was placed by learned counsel for the appellant on the ratio of the decisions delivered in the matter of Ramakant Mayekar v. Celine D'Silva, 1996 (1)SCC 399, Ananga Uday Singh Deo v. Ranga Nath Mishra, 2002 (1) SCC 499,and M. Chinnasamy v. K.C. Palanisamy, 2004 (6) SCC 341.
24. Learned counsel finally submitted that in the present appeal, this Court is exercising power under Section 116A of the Act, which is an appeal both on law and fact as mentioned in the aforesaid section itself. Hence, the contention of the respondent that this Court should be slow in interfering with the finding of fact arrived at by the High Court is untenable. This Court, as the first appellate court is entitled to re-assess and re-appreciate the entire pleading and evidence on its own and come to an independent conclusion. In any event, the impugned judgment of the High Court suffers from inherent legal infirmities and recorded perverse findings and hence the judgment is liable to be set aside and the appeal is fit to be allowed. Learned counsel therefore invited the attention of this Court to the evidence of PWs 1, 2, 4, 5, 6 as also 9, 10, 11 and 12 relied upon heavily by the Respondent and commented extensively on the value of the testimony of oral evidence as well as documentary evidence.
25. 25. Countering the submissions advanced on behalf of the appellant, learned counsel for the respondent Ms. Kamini Jaiswal submitted that on a bare perusal of the Election petition, it is apparent that the verification of the Election petition was proper and the same was done on the proper format and in compliance of the settled law on that issue. It specifically provided the paras which were based on the knowledge and the paras which were based on the information gathered from the various sources. The verification also provides the exact source of the information which was mentioned in the appeal paper book. It was stated that the election petition is in the appropriate format in form 25 as per the Rule 94 A of the Conduct of Rule 1961. The format required the affidavit to state distinctly as to which are the paragraphs of the Petition based on the knowledge and which are the paragraphs based on the information and the same has been done in the manner as required in the appeal paper book. It was, therefore, urged that the Petition should be read in its entirety and not in isolation which disclosed that the petitioner immediately before the dates of 25.01.2002 and 11.02.2002 was the Cabinet Minister holding the charge of Social Security and Development Department and had exercised his influence over the officials to get amounts released to the residents of his Constituency in the name of the pension for the old aged, handicaps etc. The pension was not only released to the eligible pensioners but the ineligible persons also who received money in the name of pension. The Petitioner although had ceased to be a Minister and may not have had the official authority to approve the grant of pension, he had enough clout as he held the charge as a Minister for all these years and hence with a view to allure the voters, he exercised his influence by recommending the applications of the residents of his Constituency, during the period immediately before the election which resulted in payment of money to as many as 27856 persons in the Sherpur Constituency. PW-1 Smt. Paramjit Kaur- Child Development Officer, Dhuri admitted that the petitioner during the period of January and February 2002,had signed on the applications, approving them and this fact has not been contested in cross-examination. Learned counsel asserted that PW-9, PW-10,PW-11 had stated categorically that the public meetings were called and forms were filled and the amount of Rs. 600 to 1200 were paid to various people in the name of pension, during a public meeting. It was therefore submitted that the grounds contended are not such that this Hon'ble Court in the exercise of its appellate jurisdiction would set aside a well reasoned order of the High Court. The said witnesses are truthful and would not come to make a false statement. The witnesses are material and truthful which would be evident from the evidence ofPW-9, PW-10, PW-11 and the learned counsel also critically analysed the evidence of these witnesses in support of the contention that these witnesses who supported the plea of the respondent in regard to her allegation of corrupt practice, are reliable witnesses.
26. Learned counsel submitted that PW-9 Ram Singh who was a Tailor Masterde posed that in the gathering held on 13.2.2002 and 11.2.2002, Rs. 600 or Rs.800 were paid and Shri Kanjla also gave Rs. 1200 to some of them. In his cross-examination, he has further accepted that the amount of Rs. 1200 was given as pension but he did not ask anyone in his family to accept Rs. 1200 for casting votes. He has further also deposed that it is wrong to suggest that pension was only for the old age pension but it was also for the handicapped persons like him. This witness further has stated in his cross-examination that after the election was held, he told Bibi Harchand Kaur that he would be prepared to appear as a witness that the votes were cast in consideration of money. He accepted that he was a frequent visitor to the House of Bibi Harchand Kaur whom he knew since long. She also knew all his family members for the last 5/6 years. He further accepted the fact that he along with Bibi Harchand Kaur had come in the car for deposition and the whole expenses of travel as well as eatables had been born by her. He also denied suggestion that being an associate with the party of BibiHarchand Karu and being related to her community, he was making a falsestatement.
27. Learned counsel for the respondent further placed reliance on PW-10Jaspal Singh son of Sarwan Singh who deposed that Shri Gobind Singh Kanjlaa long with a group of people with him came for the purposes of filling up pension forms. The pension forms were filled up on 12.2.2002, although he had been coming to his village earlier. The work of filing up the forms for pension was executed opposite to State Bank of India, Sandhaur Branch at about 6.30 to 7.00p.m. The Minister was calling the ladies and made the entries in the pension books from Rs. 200/- to Rs. 600/-. This witness stated that payment used to be made in cash and he claimed to identify this signatures of Shri Gobind Singh Kanjla. The signatures of Exs. PW1/1 and PW1/3 in green ink were that of Shri Gobind Singh Kanjla and signature on other documents also were of Shri Gobind Singh Kanjla.
28. This witness stated that he was a Sarpanch and had been performing the duties of attesting applications for fee concession and admission forms. He also accepted that the old age pension forms were attested by the Sarpanch, he also had been attesting the old age forms. This witness deposed that Shri GobindSingh Kanjla had directed him to attest certain forms and he denied that he was attesting forms for money consideration. He deposed that Gobind Singh Kanjlahad been forcing him to attest those forms. Although, he was not a Minister but still he was acting like a Minister. But he did not report this matter to any quarter viz. the Police, D.G., S.D.M. or anywhere else with regard to forcible signature onpension forms at the instance of Shri Gobind Singh Kanjla but he reported the matter to Harchand Kaur-the election petitioner. The report could not be lodgedas he was physically beating the reporters. Nobody was coming forward to report the matter against Shri Gobind Singh Kanjla. He also admitted that he did not report the matter with regard to payment of certain amount of Rs. 200/- to Rs.600/- to any quarter as it is a usual phenomena.
29. Reliance was also placed by the Respondent on the evidence of PW-11,Davinder Singh who deposed that Mr. Gobind Singh Kanjla the appellant/returned candidate had visited his village before the election. Firstly, he came on7.1.2002 and second time on 10.2.2002 to attend the Bhog of Akhand PathSahib. The Bhog Ceremony was kept by one Gurmail Singh, Zimindar. When he came on 7.1.2002, he had opened the account of various persons and distributed the copies concerning pensions like old age pension and handicap pension. On10.2.2002, when he came for the second time, an announcement was made on the loudspeaker inviting the villagers to come over and collect the pension and in the form of pension Rs. 500 each was given to various persons. He denied having given back this amount but he deposed that Shri Kanjhla was exhorting the voters to cast their votes in his favour and the pension would be doubled from Rs. 500 to Rs. 1500. He denied the suggestion that being a Congressman, he was deposing falsely in support of the allegation that the amount of pension was distributed and no passbooks were prepared.
30. The counsel for the Respondent submitted that all material facts and material particulars were stated in the petition and what constitute material facts and the material particulars depend on the facts of each case and no general rules can be laid down. Learned counsel placing reliance in this regard on the decision reported in Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., 2004 (7) SCC 181 submitted that if there are more than one allegations and the material facts are sufficient with regards to one of such allegations, the petition is maintainable and cannot be thrown out. Learned counsel also placed reliance on the case of Subhash Desai Vs. Sharad J. Rao - AIR 1994 SC 2277 in support of his submission. It was, therefore, contended that the findings arrived at by the High Court are fit to be sustained and the appeal was fit to be dismissed.
31. In order to test the relative strength and weaknesses of the plea of the contesting parties, while considering an election appeal which is directed against a judgment and order by which the election of a returned candidate has been set aside on the allegation of corrupt practice, it would be worthwhile to recollect at this stage that although the High Court has the jurisdiction and competence to declare the election of a returned candidate to be void on the allegation of corrupt practice, it is well settled by now in view of the ratio laid down in a catena of decisions of the Supreme Court that the mandate of the people in a democracy as expressed by the result of the election must prevail and be respected by the Courts and, therefore, heavy onus lies on the election petitioner seeking the setting aside of the election of a successful candidate and therefore he has to make out a clear case for such relief both in the pleading and at the trial. The electoral process in a democracy undoubtedly is too sacrosanct to be permitted or allowed to be polluted by corrupt practice and if the Court arrives at a finding of commission of corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, then the election of the returned candidate shall be declared to be void since the underlying principle is that the corrupt practice having been committed, the result of the election does not echo the direct voice of the people. But, at the same time, it cannot be overlooked as was observed by the Supreme Court in the case of R.P. Moidutty Vs. P.T. Kunju Mohammad & Anr. reported in 2000 (1) SCC 481that the consequences flowing from the proof of corrupt practice at the election are serious and hence the onus of establishing commission of corrupt practice lies heavily on the person who alleges the same. The onus of proof is not discharged merely on preponderance of probabilities but the standard of proof required is akin to that of proving a criminal or a quasi criminal charge. Hence clear cut evidence, wholly credible and reliable is needed to prove beyond doubt the charge of corrupt practice.
32. The aforesaid principle laid down by the Supreme Court in the aforesaid authority has adequately been taken care of in the election petitions which are filed alleging corrupt practice wherein utmost caution and care are applied while dealing with the allegation of indulgence in corrupt practices at the instance of their turned candidate, but in the process, mis0appreciation of evidence and hence error of judgment in coming to a definite conclusion cannot be ruled out due to which appeals are preferred against the judgment and order of the High Court delivered in election petitions. The instant appeal also is one such appeal where the election of the returned candidate has been set aside by the High Court vide impugned judgment on the findings of corrupt practice which is under challenge and hence we have carefully scrutinized the evidence led by the contesting parties and critically considered the submissions of the counsel for the respective parties in the light of the settled law laid down, before the election of a returned candidate is allowed to be quashed and set aside.
33. The counsel for the appellant although has primarily challenged the judgment and order of the High Court in order to assail the findings recorded on the charge of corrupt practice, the counsel had also submitted that the respondent had filed the Election petition without disclosing `material facts' with `full particulars' which is envisaged under Section 83(1)(a)(b) of the Act which mandates that the Election petition must contain material facts and it must also contain full particulars. It was contended that this is the mandatory requirement of law and no Election petition can be entertained without material facts with full particulars in absence of which it is not fit to be entertained.
34. In our view, the submission of the counsel for the appellant to the effect that the petition lacked material facts with material particulars, is clearly in the nature of preliminary objection affecting maintainability of the Election petition and hence we consider it appropriate to deal with this contention, before we proceed further to examine the correctness of the pleas raised in regard to challenge to the allegations of corrupt practice.
35. On the plea of lack of `material facts' with `material particulars', It was submitted on behalf of the appellant that in paragraphs 24, 26 and 30 of the Election petition, it has merely been stated that the appellant distributed money in cash to the voters but no specific particulars about the date, time and place where money was allegedly distributed, nor the name of the persons to whom it was distributed have been mentioned. The counsel, therefore, had contended that the averments of the election petitioner are vague, general and omnibus and thus cannot be looked into and were fit to be ignored. Developing his arguments further on this plea, it was submitted that material facts as well as material particulars had not been supplemented by the respondent - election petitioner in spite of specific objection taken by the appellant in his preliminary objections bearing numbers 1 and 2. The respondent although had opportunity to supplement and amplify the material facts and particulars, he failed to do the same and hence the averments of the respondent-election petitioner should not have been allowed to lead evidence beyond pleadings as the evidence which is led beyond pleadings, is liable to be ignored. To reinforce this submission, the counsel for the appellant relied upon several pronouncements of this Court which include the matter of Ram Sukh v. Dinesh Aggarwal reported in 2009 (10) SCC541, Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar reported in 2009 (9)SCC 310, Ananga Uday Singh Deo v. Ranga Nath Mishra & Ors. reported in2002(1) SCC 499 and Azhar Hussain v. Rajiv Gandhi reported in 1986 (Supp)SCC 315.
36. The counsel for the respondent Ms. Jaiswal however countered the aforesaid submission and submitted that the plea of the appellant regarding the lack of `material particulars' and `material facts' is not sustainable and on this count, it was submitted that the election petition should be read in its entirety and not in isolation since the petition in question in fact categorically stated that the appellant candidate immediately before the date of filing nomination on 25.1.2002 and prior to resigning from the portfolio of Minister holding the charge of Social Security Department had exercised his influence over the officials to get amounts released in his constituency in the name of pension for the old age widow and handicapped people and the averments to that effect have specifically been pointed out in para 17 of the Election petition. In the alternative, the counsel for the respondent submitted that even if the Election petition lacked extensive details regarding `material particulars', the same was not enough to reject a petition and in support of this submission, the counsel for the respondent on her part also relied upon several authorities of the Supreme Court which are Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, 1984 (4) SCC at page 649, Mohan Rawale v. Damodar Tatyaba @ Dadasaheb, 1994 (2) SCC atpage 393, Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., 2004 (7)SCC at page 181, Regu Mahesh v. Rajendra Pratap Bhanj Dev, AIR 2004 SC at page 42 and 43 and Ram Sukh v. Dinesh Aggarwal, 2009 (10) SCC at page 548and 549.
37. 37. Dealing with this preliminary question as to whether the election petition filed by the respondent was fit to be dismissed on the ground of the lack of` material facts' with `material particulars', we are fully conscious of the well-settled legal position to the effect that if the election petition fails to disclose any cause of action and there is non-compliance of the mandatory requirements of Section 83of the Representation of People Act 1951 which requires that the election petition should contain material facts on which the petitioner relies, it should set forth full particulars of any corrupt practice including full statement of the names of the parties which is alleged to have been committed along with the specific date and place of the commission of such corrupt practice. But it would also be equally appropriate to bear in mind that although the expression `material facts' has neither been defined in the Act of 1951 nor in the Code of Civil Procedure , it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. Their Lordships of the Supreme Court in 2009 (10) SCC at page 548 have observed thus: "`material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are `material facts'. Material facts are facts which, if established, would give the petitioner the relief prayed for. But again what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down". This authority has also taken note of the ratio of the decision in the case of Samant N. Balkrishna v. George Fernandez wherein the three Judge Bench headed by the then Chief Justice M. Hidayatullah laid down five criteria which are mandatory under Section 83 of the Act for determination as to whether the Election petition discloses that it does not lack in material facts and particulars. It was laid down therein that it is mandatory to first of all record a concise statement of material facts and then the fullest possible particular. Any omission of even a single material fact leads to an incomplete cause of action and statement of claim would be treated as bad. The function of particulars is to present in full, a picture 28 of the cause of action and to make the opposite party understand the case he will have to meet. The learned Judges further held therein that the `material facts' and` material particulars' are distinct matters and while the material facts will mention statements of fact, the particulars will set out the names of persons with date, time and place while stating the material facts as it will not be sufficient merely to quote the words of the section since the efficacy of the material facts in that event would be lost.
38. While dealing with the question of material facts and material particulars, we also considered it appropriate to take into account the ratio of the decision delivered in the case of Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu andOrs. reported in 2004 (7) SCC 181 wherein the three Judge Bench of this Court had been pleased to consider the question as to what would constitute material facts and material particulars and also discussed its concept and the distinction between the two. In this authority too, it was emphasized and held that what particulars would amount to `material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It was also held that material particulars, on the other hand, are details in support of material facts and the expression material facts although have not been defined in the Act nor in CPC, it will have to be inferred that material facts are those facts upon which the party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depend. But what particulars ultimately will be said to be `material facts' would depend upon the facts of each case and no rule of universal application can be laid down. 29 Particulars, on the other hand, are details in support of material facts pleaded by the party. This amplify, refine and embellish material facts by giving finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Thus, material particulars ensure conduct of fair trial which would not take the opposite party by surprise.
39. The ratio that can be deduced from the aforesaid three authorities of the Supreme Court has further been reiterated in the case of Samant N. Balkrishna v.George Fernandez and latter on in Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., 2004 (7) SCC 181 as also in Ram Sukh (supra) wherein it has been once again held that although, it is the legal requirement under Section 83 of the Act of 1951 to clearly set out material facts and material particulars in the election petition, ultimately it has been unequivocally held that there can be no rule of universal application which can be laid down as to what would constitute `material facts' and `material particulars' and ultimately it is the facts of each case which will be relevant for determination as to whether the election petition was fit to be rejected on the plea of lack of material facts and material particulars or it was fit to be entertained if the same disclosed a cause of action for consideration by the Court.
40. We have, therefore, carefully considered the correctness of the assertion of the counsel for the appellant whether the election petition in the case at hand was fit to be rejected for want of material facts and material particulars and we have noticed that the respondent has categorically stated the date, time and place of 30 occurrence of the alleged corrupt practice at the instance of the appellant and has also given out the names of the witnesses who were to support the election petition filed by the respondent. But what exactly would be the worth of the evidence of witnesses relied upon by the counsel was a matter to be considered at the appropriate stage during trial, but to contend that the election petition lacked in material facts and material particulars due to which the election petition filed by the respondent was fit to be rejected on the ground of lack of material facts and material particulars, would not be legally correct and justified. In fact we have noticed that the High Court in the impugned judgment and order has not even addressed this issue as to whether the petition was fit to be rejected on this ground or not, but the counsel for the appellant seems to have acquiesced with the same. However, since the counsel for the parties have addressed this Court on this issue which is clearly in the nature of a preliminary objection, we considered it just & appropriate to deal with this issue but for the reasons stated herein before, we do not accept the contention of the counsel for the appellant that the Election petition was fit to be rejected for lack of material facts and materialparticulars.
41. 41. The next question on which the entire edifice of the election petition rests, which has been the core issue on which the counsel for the parties have addressed this Court, is the question as to whether the appellant –returned candidate had indulged in corrupt practice or not while contesting in the Assembly Election of Sherpur Constituency. As already stated hereinbefore, learned counsel had, first of all, submitted that the corrupt practice of bribery 31 defined in Section 123 (1) will be attracted only if it had been committed by the candidate after filing his nomination paper. It was submitted that the appellant had resigned as Social Security Minister on January, 12 2002 and filed his nomination subsequently on 23rd January, 2002. Hence, there could be no question of misuse of power by him after he resigned from the post of Social Security Minister as also the party and subsequently became a candidate for the election. Consequently, the allegation of corrupt practice of bribery is not made out as the alleged action relates to the period when he was no longer holding the charge of Social Security Minister. The counsel further elaborated on this aspect and submitted that the period of misuse of power alleged by the respondent herein pertain to the period between January 23, 2002 to 9th, 10th and 11thFebruary, 2002 during which the petitioner was admittedly not a Minister. Hence, the Petition has a fatal contradiction between the allegation and the time period to which the allegation pertained as the petitioner had admittedly resigned as a Minister on January 12, 2002. The counsel, therefore, submitted that the alleged corrupt practice pertains to the period when the appellant herein was the Minister which position he relinquished before becoming a candidate in the election and hence, there could be no question of distribution of pension by him during the election when he ceased to be a Minister. It was submitted that in the present case none of the witnesses can be relied upon to come to a conclusion that the appellant had committed corrupt practice as PW-9, Ram Singh was summoned to prove that the appellant had delivered speeches at village Ladda promoting feeling of enmity on the ground of religion, caste and community and further to influence people not to vote for the party belonging to which the respondent 32 belonged. It was submitted that this witness did not depose for the purpose for which he was called to give evidence which was the issue of illegal distribution of pension by the appellant to his voters.
42. 42. The counsel for the respondent, on the other hand, relied upon the evidence of PWs - 9, 10 and 11 referred to hereinbefore and submitted that these witnesses have stated categorically that the public meetings were called and forms were filled and the amount of Rs. 600 to Rs. 1200 were paid to various people in the name of pension during a public meeting. The counsel for the respondent, therefore, urged that these three witnesses ought to be relied upon in support of the plea that the appellant had misused his official position and got the pension distributed which was clearly with a motive to influence the voters in his favour. The counsel has taken us to the evidence of PW-9, Ram Singh and cross-examination of PW-10, Jaspal Singh who was a Sarpanch of village Ibrahimpur from 1992 to 2003 and had failed in the Assembly Election of 2002which was held on 13.2.2002, as also in his cross-examination. The counsel further has taken us through the evidence of PW-11, Davinder Singh who was a voter in village Gathala which falls in Sherpur Constituency.
43. 43. On a careful analysis of the case and counter case of the returned candidate that is the appellant herein and the defeated candidate – respondent herein, it is patently clear that the allegation of corrupt practice in regard to distribution of pension can be divided into two parts - the first part relates to the distribution of pension which pertains to the period prior to 12.1.2002 and the 33 second part pertains to three dates which is 10/11/12.2.2002 when the appellant was a candidate for the election but was no longer a Minister so as to distribute old age widow/handicapped persons. In factual aspects of the matter this clearly indicate that even if the plea of the respondent - election petitioner with regard to the allegation of distribution of pension amounting to corrupt practice which pertained prior to the period of January 12, 2002 is taken into consideration, the same cannot by any legal yardstick or even ordinary prudence would constitute indulgence in corrupt practice by the appellant as he was duly holding the portfolio of Social Security as Minister who had the legal authority to approve distribution of pension as part of his official duty. It is not difficult to infer that the distribution of pension to the eligible persons in the constituency or even outside the constituency was part of the discharge of official duty as Minister and it is nobody's case that this distribution did not lie within the legal domain of the Minister who could order distribution of pension to the eligible persons in the are a who were either old, handicapped or widow. Therefore, distribution of pension to old age/widow/handicapped persons which was ordered or approved ensuring its distribution could not possibly be inferred as an action which could amount to indulgence in corrupt practice. We, therefore, find sufficient reason and force in the plea of the counsel for the appellant to the effect that the corrupt practice of bribery as defined in Section 123(1) would be attracted only if such act had been committed by a candidate after filing of his nomination paper and the ratio of the judgment relied upon by the counsel for the appellant in the case clearly adds weight to his submission.
44. We, thus, do not agree with the High Court that although the appellant had resigned as Social Security Minister on January 12, 2002, the same would not have any bearing on his defence that he had not indulged in corrupt practice, at least in so far as distribution of pension from to 12th January, 2002 is concerned and the same would clearly be in favour of the appellant as any distribution of pension that was made prior to the filing his nomination on 23rd January, 2002whether in the capacity as a Minister or otherwise, would clearly not amount to indulgence in corrupt practice. In the decision relied upon by the counsel for the appellant delivered in the case of Mohan Rawale v. Damodar Tatyaba @ Dadasaheb - 1994 (2) SCC 392 also, it was held that the expression `candidate' in Section 79(b) of the Act completely excludes the acts by a candidate up to the date he is nominated as a candidate. Therefore, the allegations relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice proprio vigore.
45. Reliance was also placed by the counsel in the matter reported in Kona Prabhakara Rao v. M. Seshagiri Rao -1982 (1) SCC 442 wherein it was contended that any act attributed to the appellant in his capacity as a Minister, even if assumed to be correct although the same are disputed, would not come within the ambit of corrupt practice as sanction, approval or grant of pension by aMinister during his tenure as a Minister cannot amount to bribery under clause (1)of Section 123 of the Act as it is not a gift, offer or promise of any gratification which is a sine qua non for attracting the said provision. Sanction and approval for grant of pension as a Social Security Minister clearly would be within the ambit of 35 the authority of the Minister to get it distributed as not distributing pension whiledischarging the functions of a Minister would on the contrary amount to non-performance on the part of the Minister in the State which could also include his constituency and to hold that eve
