Vinod K. Sharma, J.@mdashThis is an application under Order 6 Rule 16 read with Order 7 Rule 11 of the CPC and Sections 83, 86 and 87 of the Representation of Peoples Act, 1951 (for short the Act) for striking out the pleadings and for rejection of the Election Petition. An Election Petition under Sections 80, 80A, 100 and 101 of the Act has been moved for setting aside and declaring the election of respondent-applicant from Talwandi Sabo constituency as null and void. The averments made in the election petition read as under:
1. That a notification was issued by the Election Commission of India for holding the General Elections to the Vidhan Sabha of the State of Punjab and whereby schedule for the holding of the election was made by the Election Commission and various dates were fixed for the process of elections. The following was the schedule fixed by the Election Commission:
Issue of Notification 18.01.2007
Last date for making nominations 25.01.2007
Date of Scrutiny of nominations 27.01.2007
Last date of withdrawal of Candidatures 29.01.2007
Date of Poll, if necessary 13.02.2007
Houes of Poll 8 Am to 5 PM
Date of counting of votes and declaration of result. 27.02.2007
2. That the petitioner is a resident and Voter in 110 Pacca Kalan, Assembly Constituency of the Vidhan Sabha at Sr. No. 621 in part No. 065 of electoral roll. The petitioner was a candidate set up by a registered political party namely Shiromani Akali Dal. After the process of scrutiny, total eleven candidates were left in fray for the said constituency including the petitioner. The respondent was candidate of Indian National Congress. The poll was held in accordance with the schedule as reproduced above and as per the result sheet, the following were the votes secured by the different candidates:
1. Amarjit Singh Sidhu 46222 2. Surjit Singh 8450 3. Jeetmohinder Singh Sidhu 50012 4. Ashok Kumar 664 5. Hardevinder Singh Chahal 194 6. Gurnaib Singh 116 7. Darshan Singh 1405 8. Balbeer Singh 227 9. Bhim Chand 711 10. Rajinder Singh 421 11. Vijay Mittal 421 Total number of electors : 125852 Total number of valid votes polled : 109504 Total number of rejected votes 01 Total number of tender votes 08
The respondent was returned as successful candidate by securing a margin of 3790 votes more than the petitioner.
3. That at the time of the elections, the respondent who is the returned candidate committed gross corrupt practices and consequently, it resulted in the election of the respondent. Section 123 of the Representation of Peoples Act, 1951 (hereinafter called as the R.P. Act) lays down various corrupt practices and which are grounds for setting aside of the election of the returned candidate. The respondent started compaign much earlier to the notification and started committing corrupt practices immediately after the issuance of the above stated notification.
4. That there is a religion/ community called as ''Sacha Sauda'' which had been established over 50 years ago and is based at Sirsa in Haryana having a following of over 20 lakh people in Punjab. This sect has predominance in the Malwa region of Punjab comprising of Districts of Patiala, Sangrur, Bathinda, Mansa, Faridkot, Ferozepur, Roopnagar etc. and has it''s followers spread over uniformly in these districts. This religion/community has lacs of followers in other states as well. Each constituency in this belt has approximately 25,000/- followers. In the constituency of 109-Talwandi Sabo, it has a larger following of over 25,000 followers. The followers of this religion are called ''Premis'' and a collection of these Premis are addressed as ''Sadh Sangat'' by them. They are fully organized in each village and have their religious, spiritual and cultural faith and allegiance with the Dera Sacha Sauda at Sirsa where the chief/ head/ Baba is Sant Gurmeet Ram Rahim Singh. This head of the dera is the spiritual and religious head of the Premis and is known as "Pita Jee''. In other words, Baba jee is the Guru of these Premis and they act according to his dictums and sermons. This religion has it''s own distinct identity and operates under it''s own religious and cultural system. The marriage ceremonies of the families of the Pemis are performed according to their own self-established norms and not in accordance with any other religion. At the time of joining this religion, every person is properly baptized by them and is given a ''Naam'' where after the person becomes a part and parcel of this religion and operates within its frame work. This religion has it''s own flag which is white in colour and many other religious symbols, books and religious practices for it''s followers. They have their own token/currency system for purchasing items at the dera. This dera publishes their daily newspaper called ''Sach Kahun'' which has a very wide circulation among it''s followers. Every follower reads this newspaper daily and is circulated by the followers themselves. This dera is a distinct religious community and practices / believes in a religion of it''s own with their own system of working. This dera is in the nature of a distinct religious community. It was set up in Sirsa in April, 1948 by Beparwah Shah Mastana Balochistani as the center of spiritual learning. This dera sacha sauda welcomed people from all walks of life. The successor of Shah Mastana was Shah Satnam Singh who had taken over in 1960 and followed the tenants and religious practices of his predecessor. In September, 1990, Shah Satnam held a big Satsang where his successor was named who is now the present incumbent on this religious seat namely Sant Gurmeet Ram Rahim Singh. There are about 2 crore followers of this religion (a) over the world and this dera has about 500 acres of land in Sirsa where the dera is situated. The Premis who are the followers of this religion go to the dera in a routine manner for worshipping and also to listen to the sermons of their Baba/ Bead / Pita jee. The belief of dera sacha sauda is that the followers consider and believe that the Head of the dera is the God himself in the form of human body. This religious practice also believe in miracles purported to be done by their dera Chiefs. The system of distribution of prasad is that the eatables are put in front of the Baba jee/ Head of dera and after he looks at these eatables, they transform into prasad and then distributed among the premis. This religion is totally different and distinct from other religions prevalent in Punjab namely Sikh, Hindu, Islam,Christian, Parsi etc. The followers of other religions named above do not follow the religious practice and rituals of the religion of sacha sauda and do not subscribe to their cultural, social, spiritual, or religious values. The religion of sacha sauda is rather in it''s own water-tight compartment and there is no intermingling with other religions. It has a separate entity of its own.
5. That this Dera Sacha Sauda, with a motive to help the Indian National Congress party in the general elections held in the state of Punjab in February, 2007, decided to direct all it''s followers called the ''Premis'' to cast their votes in favour of the Indian National Congress. The political wing of Dera Sacha Sauda in its meeting held on 4.2.2007 resolved to support Indian National Congress. It was decided that Premis would vote in favour of the candidates of Indian National Congress. It was also decided that Premis would have their separate polling booths in order to demonstrate their strength. The very fact that the Premis decided to have their separate polling booths clearly exhibited that the Premis in the name of their religion wanted to influence the electorate. For achieving this purpose, the dera constituted a several member political wing for this purpose to supervise the said decision and to take further decisions in this matter. This seven-member committee was headed by one Ram Singh. This committee organized various teams, which were set in motion and headed towards various constituencies in the Malwa belt. This committee became very active and actively organized it''s active workers to ask the Premis to vote for the respondent who was the candidate of Indian National Congress. This propaganda was done from person to person basis, in the form of rallies, advertisements, news items and many other methods. The organization of dera sacha sauda is well built in the form of hierarchy at different levels. The entire process of asking the premis to vote for respondent was done with active consent of respondent Jeetmohinder Singh Sidhu and his a gents. The respondent a ctively asked the premis who are the followers of the dera Sacha Sauda to vote for him and in pursuance of the decision taken by the dera itself and declared to be so by the political wing of the dera. The Baba of the dera was closely related to the candidate of Indian National Congress from the Constituency of Bathinda. The daughter of Harminder Singh Jassi si married to the son of the Baba. Accordingly, the dera sacha sauda was being illegally used for political gains. The relationship of the Baba of the Dera was so close that the entire effort was to make sure that the respondent wins from the Talwandi Sabo constituency. In this way,it paved their way to connect with each other to do this unlawful action. In giving the Congress ticket to the respondent (Sh. Jeetmohinder Singh Sidhu), the support of the Dera Sucha Sauda was ensured.
6. That after the decision was taken by the dera Sacha Sauda to cast their votes only in favour of the candidates of Indian National Congress, the political wing of the dera published in various newspapers a schedule of programme. The meetings were to be addressed in various constituencies for appealing to their followers (Premis) to cast their votes in favour of Congress party. Such declaration was made for the Talwandi Sabo constituency in accordance with the schedule. The respondent addressed the election rally on 08.02.2007. In this rally, Sh.Jeetmohinder Singh Sidh (the respondent) confessed that he and his family have become part of the Premis i.e. the Dera. The respondent also confessed that he had become part of them (the Pemis). The respondent believed that even the Premis would also treat him as part of them and would take him in their fold. The respondent assured the sangat that he would always serve them. These details would be clear from the daily ''Sach Kahun'' dated 10.02.2007. Therefore, all the Premis of the constituency must support the respondent. This assembly was largely attended by the Premis. Consequently, the audience who were the premis raised their hands in the affirmative by raising the slogan "Dhan Dhan Satguru tera Hi Aasra". The appeal and the decision were made in the name of religion and Premis were directed to cast their votes in the name of their dera i.e. Dera Sacha Sauda. This was done with the active consent of respondent who was a candidate of the Indian National Congress. An appeal was made to the Premis who are followers /disciples of Sacha Sauda to vote for the respondent on the ground that they being part of this religion and to comply with the decision taken by the dera sacha sauda and the political wing of the dera. The appeal was made from time to time in the month of February, 2007. I n this regard, p articular r eference may be made t o the daily ''Sach Kahun'' dated 11.02.2007.
It would be relevant to point out that Jeetmohinder Singh Sidhu, the respondent himself interacted with individual persons and appealed to them personally to vote for him on the ground that they belonged to this religion / community and that he himself was also part of the same. The respondent has himself and the members of the political wing of the dera Sacha Sauda with the consent of the respondent have appealed to the voters in his constituency to vote in the favour of respondent on the ground of religion, race, caste and community and in this way, the respondent committed gross corrupt practice as contained in Section 123(3)(3-A) of the R.P.Act. The Head / Baba of the dera as well as the political wing of dera Sacha Sauda enjoy active confidence over their followers /premiss. There has been undue influence, that is to say that there had been direct interference and attempt to interfere on the part of the respondent and his agents as also by the members of the political wing of dera Sacha Sauda with the consent of respondent with the free exercise of the electoral right and therefore it constituted a corrupt practice u/s 123(2) of the R.P.Act. Various news items and advertisement issued and published in different newspapers are stated and described as below:
(i) A declaration of decision was published in Daily Sach Kahun dated 4.2.2007. A news item was also published in the same above said news paper which states that the decision of Political wing has become operative from today. This constitutes Corrupt Practice as defined in Section 123(2), (3) & (3-A) of the R.P. Act.
(ii) On 5.2.2007, big news item appeared in Daily Sacha kahun wherein news item with pictures were shown regarding State level meeting and rally organized at Patiala on 4.2.2007 declaring and endorsing the decision of the dera Sacha Sauda. On the same date i.e. 5.2.2007, a news item was published in Amar Ujala newspaper, which has wide circulation in District Bathinda. It was also stated in the news item that it is has been told to the premis to install separate polling booths at all polling stations. Tis constitutes Corrupt Practice as defined in Section 123(2z), (3) & (30A) of the R.P.Act.
(iii) On 8.2.2007, the political wing of the dera Sacha Sauda (Sirsa) got published a big advertisement in the nature of declaration and dictum to it''s followers apprising them of the decision and appealing them to cast their votes to the congress (I). This has been published in Punjabi Tribune and Daily Ajit. By way of such declaration, the intention of the Congress Party in connivance with the dera Sacha Sauda became clear and natural. There has been gross violation of the provisions of the Representation of the People''s Act. It is stated that all these newspapers stated above have very wide circulation in District Bathinda. This constitutes Corrupt Practice as defined in Section 123(2), (3) & (3-A) of the R.P. Act.
(iv) On 13.2.2007 ie. the day of elections, a big advertisement in the nature of declaration appeared in Punjabi Tribune with an appeal by Sh.Ram Singh, Chairman of political wing under his own signatures with an appeal to the sadh sangat premis to vote for congress in accordance with the decision. This constitutes Corrupt Practices as defined in Section 123 (2), (3) & (3-A) of the R.P.Act.
(v) On 25.3.2007, a news item appeared in Daily Ajit wherein it was stated that one dozen congress MLAs including Mrs. Bhattal have visited the dera sacha sauda for expressing gratitude. This includes respondent Jeetmohinder Singh Sidhu as well. The result of election has been materially affected by the corrupt practices stated above in the interest of the respondent.
7. That election rally was held on 11.02.2007 at Maur Mandi. At this rally, an appeal was made that Premis of Dera Sacha Sauda must vote and support the respondent Jeetmohinder Singh Sidhu. It was made clear that since the respondent is part of the religious sect - Dera Sucha Sauda, he must be elected. The respondent in this rally sought vote and support in the name of Dera Sucha Sauda by even meeting individuals. It would be relevant to make specific reference to Sh.Prem Kumar son of Sh, Bachna Ram, near Old Bus stand, Talwandi Sabo and Sh.Karnail Singh son of Sh. Amar Singh, Street No. 3, Dashmesh Nagar, Maur Mandi who were personally asked by the respondent to vote for him since he was part of Dera Sucha Sauda. Thus, the respondent himself and the members of the Political Wing of Dera Sucha Sauda with the consent of the respondent, made appeal to the votes in his constituency to vote in favour of the respondent on the ground of religion, race, caste and community. Resultantly, the respondent committed gross corrupt practice as contained in Section 123 (3) & (3-A) of R.P. Act. The Head /Baba of the dera as also the political wing of the Dera enjoy the confidence of their followers /premis. In this view of the matter, there was Undue Influence i.e. direct interference and attempt to interfere on the part of the respondent and his agents as also by the members of the political wing with the consent of the respondent with the free exercise of the franchise right. Consequently, it constituted corrupt practice u/s 123 of the R.P. Act.
8. That the respondent Sh.Jeetmohinder Singh addressed the election rally on 11.02.2007 held at Maur Mandi. While doing so, the respondent made false, baseless and illegal allegations against the petitioner in as much as that the petitioner has occupied and it in possession illegally of different plots /houses and even the cremation ground. This is factually wrong. The petitioner is not in occupation and possession of any plot of land / house/cremation ground illegally. By doing so, the respondent Sh. Jeetmohinder Sigh has made/published a statement of fact which is false and which he also believed it to be false in relation to the personal character and conduct of the petitioner being statement reasonably calculated to prejudice the prospects of the election of the petitioner. By making such a false and baseless statement, the mind of the electorate was prejudiced against the petitioner, the proceedings of the meeting were recorded in video by the Election Commission. The same resulted in materially affecting the prospects of the election of the petitioner. Thus, the respondent knowingly violated Section 123(4) of the R.P. Act.
2. In the reply filed besides denying the allegations on merit following preliminary objections were raised with regard to the maintainability of the Election Petition.
1. That the election petition is bad for non compliance of provisions of Section 83 of Representation of Peoples Act. Hence, the petition is liable to be dismissed u/s 86 of Representation of Peoples Act, 1951 read with order 6 Rule 16 and order 7 Rule 11 of CPC as amended by the Act No. 22 of 2002.
2. That the election petition does not disclose any cause of action. The allegations of corrupt practice made in the election petition are totally vague and ambiguous and are of general nature and are full of possible inferences. Hence, all the paras relating to commission of corrupt practice u/s 123 of Representation of Peoples Act are liable to be struck off.
3. That the provisions of Section 123(2) & (3) of Representation of Peoples Act are not applicable at all in this case. The Dera Sacha Sauda is neither a religion nor a followers of Dera Sacha Sauda practice any specific religion nor any appeal alleged to have been made by political wing of Dera Sacha Sauda can be termed as religious appeal as per provisions of any of sub sections of Section 123 of Representation of Peoples Act, 1951 as the political wing of Dera Sacha Sauda by no stretch of imagination can be termed as a religious entity. Neither the replying respondent is follower of Dera Sacha Sauda nor any appeal has been made by Head of Dera Sacha Sauda to vote in favour of the replying respondent or against the petitioner. Hence the provisions of Section 123 of Representation of Peoples Act are not attracted at all. The allegations made in para Nos. 4,5, 6, 7 & 8 of the election petition being totally vague and not complying with the provisions of Section 123 of Representation of Peoples Act. 1951 are liable to struck off and the election petition is liable to be dismissed. The Dera Sacha Sauda is a Sect which propagates it followers to follow some principle of life and hence the Dera can neither be treated as a religious entity nor it comes under the ambit of religion. There is no allegations in the whole of the petition that Head of the Dera Sacha Sauda ever made any appeal to caste vote in favour of the replying respondent on the basis of his religion and only vague allegations of alleged appeal made by political wing of Dera Sacha Sauda to vote in favour of Congress candidates is made which is not specific at all and all these paras being totally vague and ambiguous are liable to be struck off and election petition is liable to be dismissed.
4. That the verification of the paras of the election petition is defective and not in accordance with the provisions of Representation of Peoples Act, 1951, CPC as well as High Court Rules and Orders. The verification of the election petition is vague and creates lot of confusion and rather the replying respondent is incapable of answering the allegations made in the election petition. Hence, the election petition is liable to be dismissed.
5. That the affidavit of the petitioner regarding corrupt practice has also not been ve4rified as per the provisions contained in Representation of Peoples Act, CPC en High Court Rules and Orders. The verification on the basis of information received from agents and workers is totally vague and incorrect and hence the verification is not in accordance with the law. The affidavit in support of the corrupt practice is defective, incorrect and renders the entire election petition vague and defective. Hence, the election petition is liable to be dismissed on this ground also.
6. That the election petition does not contain material facts on which petition relies. The petitioner has failed to set forth the material facts and material particulars of corrupt practice alleged to have been committed by the respondent. The petitioner has failed to give specific details of material facts with the respondent has obtained obtained the assistance of Dera Sacha Sauda or from the members of the alleged political wing. The petitioner has failed to give any details as to how when, in what manner and in whose presence the replying respondent obtained the assistance of the Head of the dera Sacha Sauda to make religious appeal in the name of the religion of replying respondent. Hence ingredients of the corrupt practice are totally missing in the election petition which is liable to be dismissed.
3. On the pleadings the following issues were framed:
1. Whether the election petition is bad for non-compliance of provisions of Section 83 of the Representation of People Act and thus liable to be dismissed u/s 87 of the Representation of People Act read with order 7 Rule 11 of the Code of Civil Procedure? OPR
2. Whether election petition does not contain material facts and particulars of corrupt practices and thus does not disclose any cause of action? OPR
3. Whether paras No. 4, 5, 6, 7 and 8 of the Election Petition are liable to be struck off under the provisions of Order 6 Rule 16 CPC being in violation of Section 123 of the Representation of People Act? OPR
4. Whether the Election Petition is not properly verified being not in consonance with the provisions of Representation of People Act? OPR
5. Whether the respondent is entitled to exemplary costs? OPR
6. Whether the respondent is guilty of corrupt practices within the meaning of Representation of People Act and his election is liable to beset aside? OPP
7. Relief.
4. With the consent of the parties issues No. 1 to 3 were treated to be preliminary issues.
5. At the time of hearing learned Counsel for the applicantrespondent did not press issue No. 3 and accordingly issue No. 3 is ordered to be decided in favour of the petitioner and against the applicantrespondent being not pressed.
6. Learned Counsel for the respondent-applicant sought rejection of the Election Petition by invoking the provisions of Order 7 Rule 11 of the Code primarily on the ground that even if the averments made in the election petition are taken on their face value it does not disclose any cause of action to maintain the present Election Petition. Mr. K.S. Sidhu, learned senior counsel appearing on behalf of the applicant-respondent in support of the plea that the Election Petition does not disclose any cause of action referred to the pleadings in the Election Petition.
7. Reading of the Election Petition would show that the petitioner has challenged the election of the respondent on the plea that the respondent committed gross corrupt practices as contained in Section 123 (3) and (3- A) of the Act. Election is also sought to be challenged on the ground of undue influence resulting in corrupt practices as envisaged u/s 123(2) of the Act. Section 123 (1), (2), (3), (3-A) and (3-B) of the Representation of Peoples Act read as under:
123. Corrupt practices.-- The following shall be deemed to be corrupt practices for the purposes of this Act:
(1) ''Briefly'', that is to say,--
(A) 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 whomsover, with the object, directly or indirectly, of inducing--
(a) a person to stand or not to stand as , or to withdraw or not to withdraw from being a candidate at an election; or
(b) an elector to vote or refrain from voting at an election, or as a reward to--
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive of a reward--
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or refraining from voting or inducing or attempting to induce any elector to vote or refrain from voting or any candidate to withdraw or not to withdraw his candidature.
Explanation.-- For the purposes of this clause the term ''gratification'' is not restricted to pecuniary gratifications or gratification estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred in Section 18.
(2) Under influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right: Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person whom a candidate or an elector is interested with injury or any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause:
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference with in the meaning of this clause:
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of , or appeal to, religious symbols or the use of or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation.-- For the purposes of this clause "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987.
(4) xxx (5) xxxx (6) xxx xxx
8. The contention of the learned Counsel for the respondent applicant, therefore, is that even if the allegations made in the Election Petition are taken to be correct on their face value still no allegations of corrupt practices in terms of Section 123 (3) or (3-A) of the Act is made out as admittedly the respondent does not belong to the sect of Dera Sacha Sauda and therefore, the appeal made for voting for him cannot be said to be on the ground of his religion, race, caste or community to attract the provisions referred to above as there is no averment of the respondent having been baptized or given a name so as to claim that respondent joined that religion.
9. In support of this contention learned Counsel for the respondent-applicant placed reliance on the judgment of Hon''ble Supreme Court in the case of
12. In the case before us, the election petition nowhere mentions the religion of respondent No. 1. There is no averment made in the election petition that the said appeal was made in the name of the religion of respondent No. 1. It is not the case of the appellant in his election petition that there was any negative appeal made at any time by respondent No. 1 or on his behalf, that is to say, an appeal to voters to refrain from voting for the appellant on the ground of his religion.
13. There is yet another reason why the averments made in the election petition are deficient. The appeals are said to have been made by certain religious leaders. A distinction has to be drawn between appeal simpliciter to vote or to refrain from voting made by religious leaders which may benefit any particular candidate and an appeal to vote or to refrain from voting on the ground to religion emanating from religious leaders and attributable to the candidate within the meaning of the Section 123(3). The former is not vulnerable while the latter is. All that the election petition alleges is that certain religious leaders, held in reverence by the voters, issued an appeal to vote in favour of respondent No. 1. The appeals forming the gravamen of the charge of corrupt practice do not carry in it the element of an appeal to vote for any person on the ground of religion.
14. Necessary averment of facts constituting an appeal on the ground of ''his religion'', to vote or to refrain from voting would be material facts within the meaning of Clause (a) of subsection (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order VI, Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not disclosing a cause of action under Clause (a) of Rule 11 of Order VII of the Code." Mr. J.S.Puri, learned Counsel appearing on behalf of the petitioner, on the other hand, placed reliance on the order dated 17.12.2008 passed in Election Petition No. 13 of 2007 titled Balwinder Singh Bhunder v. Ajit Inder Singh Moffer, wherein this Court was pleased to order as under:
A perusal of the pleadings shows that in the petition the calls of the Dera to its followers to vote for the respondent have been distinctly set out in paragraphs 3, 4, 5 and 7. The questions as to whether these facts are correct or not and whether such appeals having been made amounts to undue influence or corrupt practice so as to bring the same within the ambit of Section 123 (2), (3) and (3-A) of the Act can be answered only after the facts are established by way of evidence and the influence or undue influence and the extent thereof can be determined only thereafter. In this view of the matter, I am of the considered opinion that the prayer of the respondent to strike off paragraphs 4, 5, 6 and 7 of the petition cannot be accepted and the same is rejected.
to contend that the prayer made by the respondent-applicant to reject the election petition cannot be sustained as it is a question of evidence as to whether the appeal made amounted to undue influence or not? Reliance was also placed on the order dated 15.9.2008 passed by this Court in EP No. 18 of 2007 titled Gura Singh v. Ajaib Singh Bhatti, wherein this Court was pleased to hold that the issues referred to above could not be treated as preliminary issues. The operative part of the order reads as under:
In the light of the fore-going discussion, I am of the considered opinion that the respondent has not been able to prove any justification for treating those as preliminary in character and that the issues framed today shall be tried along with already framed issues.
10. Thereafter reliance has been placed on the order of this Court passed in Election Petition No. 11 of 2007 titled Darshan Singh Kot Fatta v. Makhan Singh, wherein this Court by way of detailed order was pleased to conclude that the averments made in the election petition did not constitute corrupt practices within the ambit of Sub-section (3) and sub section (3A) of Section 123 of the Act and therefore, did not disclose any cause of action for corrupt practices.
11. The parties, therefore, were not required to be put to trial for the same. Election petition based on said corrupt practices to attract sub section (3) and (3A) of Section 123 of the Act was rejected. However, this Court did not reject the election petition summarily qua the allegations made under sub section (2) and sub section (7) of the Act. The court also held that the election petition was not liable to be dismissed for non-compliance of Section 81(3) of the Act or for defective verification of election petition. The pleadings qua Sub-section (3) and (3-A) of Section 123 of the Act were not ordered to be struck off from the election petition because the same pleadings also related to the corrupt practices of undue influence within the ambit of Sub-section (2) of Section 123 of the Act.
12. Learned Counsel for the petitioner, therefore, contended that this Court at best can reject the election petition qua the allegations made with respect to corrupt practices as envisaged under Sub-section (3) and (3- A) of Section 123 of the Act but the election petition deserves to be tried for the allegations u/s 123(2) of the Act.
13. Learned senior counsel appearing on behalf of the respondent applicant, however, contends that no corrupt practice as envisaged u/s 123(2) of the Act is made out from the reading of the pleadings set up in the election petition.
14. The reading of the election petition shows that the only allegations made with regard to undue influence to attract provisions of Section 123(2) of the Act are as under:
In para No. 5 it has been averred "this committee organized various teams which were set up in motion and headed towards various constituencies in Malwa belt. This committee became very active and actively organized its active workers to ask Premis to vote for the respondent who was the candidate of Indian National Congress. In para No. 5 the entire process of asking the Premis to vote for the respondent was done with active consent of the respondent Jit Mohinder Singh and his agents.
15. In para No. 6 again it has been averred as under:
the meetings were to be addressed in various agencies for appealing to their followers (Premis) to cast their votes in favour of the Congress Party. Again in para No. 6 it has been averred "an appeal was made to the Premis who are followers/disciples of Sacha Sauda to vote for respondent on the ground that they being part of this religion and to comply with the decision taken by the Sacha Sauda and political wing of the Dera.
16. From the above said averments conclusion is said to have been drawn in para No. 6 which reads as under:
There has been undue influence i.e. to say that there had been direct interference and attempt to interfere on the part of the respondent and his agents as also by the members of the political wings of Dera Sacha Sauda with the consent of the respondent with free exercise of electoral right and therefore, it constituted a corrupt practice u/s 123(2) of the Act.
Again in para No. 6 (iii) of the election petition it has been averred that on 8.2.2007 political wing of Dera Sacha Sauda (Sirsa) published a big advertisement in the nature of declaration and dictum to it''s followers apprising them of the decision and appealing them to cast their votes to the Congress (I). This has been published in Punjabi Tribune and Daily Ajit. It is thereafter pleaded that this constitute corrupt practices under Sections 123 (2), (3) and (3-A) of the Act.
Again in para 6 (iv) it has been mentioned that appeal was made to Sat Satsang Premis to vote for Congress in accordance with the decision.
The question to be considered is "whether if these averments are taken to be correct on their face value, does it constitute undue influence to attract Section 123(2) of the Act?
17. In case of
16. The petitioners rely on four allegations on the question of undue influence. Before we deal with those allegations it is necessary to understand what undue influence is in the context of the Act. Section 18(1)(b) lays down that if the result of the election has been materially affected by reason of undue influence at the election committed by any person other than the returned candidate or a person acting in connivance with the returned candidate, the election will be liable to be declared void. Sub-section (2) of Section 18 lays down that undue influence would have the same meaning as in Chapter IX-A of the Indian Penal Code defines what "undue influence" is in these terms:
(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.
(2) Without prejudice to the generality of the provisions of Sub-section (I), whoever--
(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or
(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of Sub-section (I).
(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.
17. It will be seen from the above definition that the gist of undue influence at an election consists in voluntary interference or attempt at interference with the free exercise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in Sub-section (1) of Section 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further Sub-section (2) of Section 171-C shows what the nature of undue influence is though of course it does not cut down the generality of the provisions contained in Sub-section (I). Where any threat is held out to any candidate or voter or any person in whom a candidate or voter is interested and the threat if of injury of any kind, that would amount to voluntary interference or attempt at interference with the free exercise of electoral right and would be undue influence. Again where a person induces or attempts to induce a candidate, or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, that would also amount to voluntary interference with the free exercise of the electoral right and would be undue influence. What is contained in Sub-section (2) of Section 171-C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing it would not be undue influence. As Sub-section (3) of Section 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence.
18. We may in this connection refer to Section 123(2) of the Representation of the People Act, 1951 which also defines "undue influence". The definition there is more or less in the same language as in Section 171-C of the Indian Penal Code except that the words "direct or indirect" have been added to indicate the nature of interference. It will be seen that if anything, the definition of "undue influence" in the Representation of the People Act may be wider. It will therefore, be useful to refer to cases under the election law to see how election tribunals have looked at the matter while considering the scope of the words : undue influence".
19. The earliest case to which reference may be made is R.B.Surendra Narayan Sinha v. Amulyadhone Roy. There the question raised before the Election Tribunal was whether by issuing a whip on the day of election requesting members to cast their preferences in a particular order, the leader of a party, who was also the Chief Minister, could be said to have exercised undue influence. The Election Tribunal held that the leader of the party was entitled to use his influence as a leader and he could not be deprived of that right because he happened to be a minister. The issue of a whip of that kind was thus held to be no more than canvassing in favour of the candidates of the party to which the leader or the Chief Minister belonged.
20. In Linge Gowda v. Shivananjappa (1953) 6 Ele LR 288 (Ele.Tri Bangalore) the Election Tribunal held that a leader of a political party was entitled to declare to the public the policy of the party and ask the electorate to vote for his party without interfering with any electoral right and such declarations on his part would not amount to undue influence under the Representation of the People Act. The fact that such a leader happened to be a Minster or Chief Minister of the State would make no difference. It was further observed in that case that "the law cannot strike at the root of due influence and under the law of election only undue influence is forbidden, and the leaders of a party will be deemed to exercise their due influence if they ask the electorate to vote for their party candidate, even if they happen to be Ministers."
21. In Amirchand v. Surendra Lal Jha (1954) 10 Ele. LR 57 (Ele.Tri Nag.) it was held by the Election Tribunal that Ministers were prominent members of their party and in that capacity they were entitled to address meetings and to tell people what their party had done and what its programme was and to ask them to vote for the candidate set up by their party and such action of the Ministers could not be held to amount to exercising undue influence. It merely amounted to canvassing by the Ministers in favour of candidates belonging to their party.
22. In Mast Ram v. S. Iqbal Singh (1955) 12 Ele LR 34 (Ele.Tri Amritsar) it was held by the Election Tribunal that the legitimate exercise of influence by a political party or an association should not be confuse with "undue influence". It was further held that "Ministers in their capacity as members of their party are entitled to address meetings and to tell people what their party had done and what its programme was and to ask them to vote for the candidate set up by their party. Such action of the Ministers cannot be held to amount to "exercising undue influence.". It was further held that " if a political party passes a resolution of support to a candidate and asks its members to vote for him, it will be only a legitimate exercise of influence."
23. In Radhakrishna Shukla v. Tara Chand Maheshwar (1956) 12 Ele. LR 378 (Ele. Tri Luck.), the Election tribunal held that even where Ministers conducting an electioneering campaign promised people, who put their grievances before them during the campaign, generally to redress their grievances, it could not be held that there was exercise of undue influence and their promise merely amounted to a promise of public action, which would not be for the benefit of merely those who voted for candidates of their party but for the public as a whole.
24. The next case to which reference may be made is N.Sankara Reddi v. Yashoda Reddi (1957) 13 Ele. LR 34 (Ele. Tri. Rajahmundry). In that case the Election Tribunal held that "a political party is entitled to issue a manifesto to the voters requesting them to vote only for the candidate set up by the party. The fact that the leader of the Congress Legislature Party who was also the Chief Minister of the State had written letters to the members of the Congress Party to support the candidates set up by the party would not amount to undue influence within Section 123(2) of the Representation of the People Act.". It was added that it was only where a Minster abused his position for furthering the prospects of the candidate belonging to his party that undue influence might arise; but where a leader merely used his influence in the form of canvassing for candidates of his party there would be no question of undue influence.
25. In Dr. Y.S. Parmar v. Hira Singh Pal 16 Ele. LR 45 : AIR 1958 HP 29 the judicial Commissioner of Himachal Pradesh held that " a leader of a political party is entitled to declare to the public the policy of the party, and ask the electorate to vote for his party without interfering with any electoral right and such declaration on his part would not amount to undue influence u/s 123(2) of the Representation of the People Act."
26. In Triloki Singh v. Shivrajwati Nehru (1958) 16 Ele. LR 234 (Ele.Tri Luck) it was held by the Election Tribunal that "the right to canvass must be conceded to Ministers as leaders of a political party Just as they have a right to vote and to stand as a candidate, they also have a right to canvass for themselves and for the other candidates set up by their party." It was further held that though a Minster occupied a high position and commanded great influence, if he only solicited votes and tried to persuade the electors to vote for a candidate of his party and asked them not to vote for any other candidate or to remain neutral and did nothing more, he could not be said to interfere with the free exercise of the electoral right of the voters.
27. The last case to which reference may be made is
28. It will be seen from the above review of the cases relating to undue influence that it has been consistently held in this country that it is open to Ministers to canvass for candidates of their party standing for election. Such canvassing does not amount to undue influence but is proper use of Minister''s right to ask the public to support candidates belong to the Minister''s party. It is only where a Minister abuses his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise. But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merits of his candidate it cannot be said that by merely making such request to the electorate the Minster exercises undue influence. The fact that the Minister''s request was addressed in the form of what is called a whip is also immaterial so long as sit is clear that there is no compulsion on the electorate to vote in the manner indicated. It is in the light of these principles that we have to see whether the four allegations made in this case, assuming them to be correct, make out a case of undue influence.
18. The question of appeal by the religious leader in Hukam or Farman and making speeches convassing votes for candidate as is in the present election petition was considered by Hon''ble Supreme Court in the case of
10. It was contended on behalf of the appellant that a religious leader has as much the right to freedom of speech as any other citizen, and that, therefore, his exhortation in favour of a particular candidate should not have the result of vitiating the election. There cannot be the least doubt that a religious leader has the right freely to express his opinion on the comparative merits of the contesting candidates and to convass for such of them as he considers worthy of the confidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part, will only be a use of his great influence amongst a particular section of the voters in the constituency, but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave no choice in the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the confidence of the electors for certain reasons good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however, great, court not be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left no free choice to the Namdhari electors, not only by issuing the hukam or farman, as contained in Exh.P.1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to Section 123(2) of the Act. This aspect of the case has been dealt with at length by the High Court in a well-considered judgment, and we do not think it necessary to repeat all those observations, beyond saying that we agree with them. In that view of the matter, it is not necessary for us to consider the further question whether cl. 2 to Section 123 of the Act, apart from the proviso-para (iii), discussed above -covers a case, like the present, where the undue influence is of a spiritual character as distinguished from threats of injury to person or property. As the main ground urged in support of the appeal against the judgment of the High Court, fails the appeal must be dismissed with costs, to the Respondent No. 1.
19. In the present case also if the allegations are taken to be on their face value it would be noticed that the allegations levelled are that the religious head and the political wing of Dera Sacha Sauda had merely asked its followers to vote for Indian National Congress/respondent, without implying its non-obedience will carry divine displeasure. The allegations in the present election petition also falls short to attract the provisions of Section 123(2) of the Act as is contended by the learned Counsel for the respondent/applicant.
20. The next contention of the learned Counsel for the petitioner was that even if the allegations with regard to the influence of Dera Sacha Sauda are ignored still the election of the respondent deserves to be set aside in view of the averments made in para No. 8 of the election petition which reads as under:
That the respondent Sh.Jeetmohinder Singh addressed the election rally on 11.02.2007 held at Maur Mandi. While doing so, the respondent made false, baseless and illegal allegations against the petitioner in as much as that the petitioner has occupied and it in possession illegally of different plots /houses and even the cremation ground. This is factually wrong. The petitioner is not in occupation and possession of any plot of land / house / cremation ground illegally. By doing so, the respondent Sh.Jeetmohinder Sigh has made / published a statement of fact which is false and which he also believed it to be false in relation to the personal character and conduct of the petitioner being statement reasonably calculated to prejudice the prospects of the election of the petitioner. By making such a false and baseless statement, the mind of the electorate was prejudiced against the petitioner, the proceedings of the meeting were recorded in video by the Election Commission. The same resulted in materially affecting the prospects of the election of the petitioner. Thus, the respondent knowingly violated Section 123(4) of the R.P. Act.
21. It may be noticed that the averments made in para No. 8 of the election petition also cannot be a ground to entertain the election petition as the material facts and particulars are required to be stated. In the present election petition, the averments do not disclose the exact word used in the speech or the time of making speech. In view of the law laid down by Hon''ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi 1986 SC 1253 it cannot be a ground to proceed with the election petition. Hon''ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi (supra) has been pleased to lay down as under:
An election petition can be dismissed under the provisions of Civil P.C., if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. The CPC applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11 (a). Therefore that Section 83 does not find a place in Section 86 of the Act which authorizes dismissal of election petitions in certain contingencies does not mean that powers under the CPC cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil P.C. And it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.
22. The view that election petition can be dismissed summarily finds support from the order passed by this Court in the case of Darshan Singh Kot Fatta v. Makhan Singh (supra) on which reliance was placed by the learned Counsel or the petitioner. This Court in the said case has been pleased to lay down as under:
Learned Counsel for the petitioner at the out-set contended that in view of Section 86 of the Act, election petition dismissed at the threshold only if the election petition does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, whereas in the instant case, noncompliance of any of these provisions has not even been pleaded by the respondent and, therefore, the election petition cannot be dismissed at the threshold. The contention, although apparently attractive, is in fact devoid of merit. Section 86 makes a specific provision that an election petition shall be dismissed if there is non-compliance with the provisions of Section 81 or Section 82 or Section 117 of the Act. However, Section 86 of the Act does not lay down that an election petition cannot be dismissed at the threshold for any other reason. On the contrary, Section 87 of the Act provides that every election petition shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (in short -CPC) to the trial of suits. Thus, provisions of CPC have been expressly made applicable to the trial of election petition. Under CPC, plaint can be rejected if it does not disclose any cause of action. On the same analogy, an election petition can be dismissed or rejected at the preliminary stage if averments therein do not constitute a corrupt practice or do not disclose a cause of action. In other words, if assuming the averments made in the election petition to be true, no corrupt practice or cause of action is made out, then the election petition has to be rejected at the preliminary stage because trial thereof would be an exercise in futility. Even in the case of Umesh Challyil (supra) cited by learned Counsel for the respondent on the other aspect, it was held d that though a defective election petition cannot be dismissed u/s 86 of the Act, but it cannot be rejected when the election petition is not properly constituted as required under the provisions of the CPC. Similarly, in the case of Sardar Harcharan Singh Brar (supra), it was held that if allegations made in an election petition regarding corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and those allegations cannot even be amended after the period of limitation for filing an election petition. Thus, the allegations which do not constitute corrupt practice cannot even be allowed to be proved by adducing evidence at the trial. In other words, if the allegations in the election petition do not disclose the commission of a corrupt practice or do not disclose cause of action, such an election petition can be dismissed at the preliminary stage without putting the parties to trial by leading evidence because trial of such election petition would be an exercise in futility. In this context, learned Counsel for the respondent placed reliance on
