@JUDGMENTTAG-ORDER
K.G. Balakrishanan, J.@mdashThe petitioner contested the General Election to the House of the people (Lok Sabha) held on 22-11-1989 from Kozhikode Parliamentary constituency as a candidate of "Jena Seva" party. The respondent was declared elected from the said Parlia mentary constituency by a margin of 28950 votes. The petitioner alleges that the respondent committed serious corrupt practices and, therefore, his election is to be declared void. In the petition the petitioner alleges four types of corrupt practices committed by the respondent. The respondent filed preliminary objections denying the allegations in the petition. The respondent contends that the allegations in the petition are vague and they are frivolous and vexatious. It is also contended that the petitioner has not complied with the mandate of Section 83 of the Representation of the People Act, 1951 (hereinafter called ''the Act''). The respondent prays that the allegations in the petition are liable to be struck out under Order VI Rule 16, C.P.C.
2. It is repeatedly held by the Supreme Court in various decisions that an election petition, where allegations of corrupt practices are imputed must be regarded as a proceeding of quasi-criminal nature wherein strict proof is necessary and the pleadings of the election petitioner in his petition should be absolutely precise and clear, containing all necessary details and particulars as required by law. The allegations in the election petition should not be vague, general in character or lack material particulars. Section 83 of the Act specifically gives guidelines as to the mode in which the pleadings are to be drafted in an election petition. Section 83 requires the petitioner to give a concise statement of the material facts on which the petitioner relies. It is also mentioned in Section 83 that the petitioner shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrput practices and the date and place of the commission of each such corrupt practice. From Section 83 of the Act it is clear that all preliminary facts which must be proved to establish the existence of a cause of action shall be stated in the petition. In the context of a charge of corrupt practice material facts would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not and as such required to be pleaded, is a question which depends on the circumstances of the case. In
"In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a)".
The Supreme Court has consistently taken the view that an election petition can be and must 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 are not complied with. By virtue of Section 87 of the Act the provisions of the C.P.C. are made applicable for the trial of an election petition. Under Order VI Rule 16 the Court is empowered at any stage of the proceedings to strike out any pleading which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit or which otherwise an abuse of the process of the court. Order VII Rule 1 l(a) mandates that a plaint shall be rejected where it does not disclose a cause of action. Therefore, it is clear that an election petition is to be summarily rejected where it fails to furnish a cause of action. (See
3. In the petition it is alleged that on behalf of the respondent and with his consent a false propaganda was published that the petitioner had retired from contest and that the petitioner appealed to elect the respondent. It is further alleged that these statements were made by announcements through Loud speakers at meetings and in moving vehicles two days before and on the eve of the day of election. The petitioner''s efforts to prevent them by a newspaper advertisements were in vain and the respondent made this propaganda to prejudic e the prospects of the election of the petitioner and as such the number of votes secured by him was substantially reduced. It is pertinent to note that the petitioner has not mentioned the names of any of the persons who made such false propaganda. Even though several vehicles were allegedly used to spread this propoganda the register numbers or other identifying features of these vehicles are not mentioned in the petition. It seems that the petitioner alleged this fact as a ground of corrupt practice as envisaged u/s 123(4) of the Act. Section 123(4) was amended by Act 58 of 1958. Formerly u/s 123(4) of the Act, the publication by a candidate or his agent or by any other of any statement of fact which is false, and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate, or in relation to the candidate, or withdrawal or retirement from contest of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate''s election was a corrupt practice. By Section 13(6) of Act 58, the words "retirement from contest" were omitted from Section 123(4) of the Act. Therefore, the propaganda, if any, regarding the retirement from contest does not amount to corrupt practice. Moreover, the allegations do not disclose all material facts. It is not specifically pleaded that the respondent gave consent to any person to make false propaganda. The names of the persons who committed the said corrupt practice are not mentioned in the petition. The petitioner has also not produced the copy of the newspaper advertisement, alleged to have been made by him, to counter the propaganda allegedly made by the supporters of the respondent. The petitioner has no case that he filed contemporaneous complaint or petition against his alleged spread of false propaganda. The allegation contained in the first ground lacks material particulars. Therefore, the whole paragraph 3(a)(i) is to be struck out under Order VI Rule 16 of the C.P.C.
4. The next ground urged by the petitioner to challenge the election of the respondent is that the respondent used motor vehicles for the conveyance of electors. It is alleged that many motor vehicles were procured and used for conveyance of electors to and from polling booths for voting purpose on the date of the election with the consent of the returned candidate and his election agent. The petitioner has also mentioned the Taxi Car No. K.R.Z. 2430 as the one used for the conveyance of electors in Kozhikode City. According to the learned counsel for the petitioner the allegations contained in paragraph 3(a)(ii) of the petition would constitute the corrupt practice u/s 123(5) of the Act. u/s 123(5) hiring or procuring of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent for the free conveyance of any elector to or from any polling station is prohibited. It is significant to note that the use of vehicle for the "free conveyance" of the elector alone would constitute a corrupt practice. The allegations contained in paragraph 3(a)(ii) of the election petition do not specifically say that motor vehicles were procured and used for the free conveyance of electors. It is also important to note that not a single specific instance has been quoted by the petitioner. A taxi cab number is mentioned in the petition but it is not specified as to who were all the electors given conveyance to or from polling station. The allegations are too vague and general and that the respondent may not be in a position to defend the same effectively. The allegations are not capable of raising a cause of action.
5. In paragraph 3(a)(iii) of the petition it is mentioned that the signature of the petitioner was forged by somebody for appointment of counting and polling agents. Under what circumstance the petitioner''s signature was forged is not mentioned in the petition. It is also not mentioned that the returned candidate or his agent had any hand in forging the signature of the petitioner. It is not mentioned that the returned candidate had given consent to any such malpractices. The allegations in paragraph 3(a)(iii) of the petition are also not sufficient to raise a cause of action.
6. In paragraph 3(a)(iv) of the petition it is mentioned that the President of the Congress (I) party the then Prime Minister of India, Shri Rajiv Gandhi announced that an amount of Rs. 5000/- crores is earmarked for employment and upliftment of women under Manila Yojana Scheme and this amounted to corrupt practice. The details of this allegation are not mentioned in the petition. It is not stated as to when this announcement was made by the Prime Minister. Either the press report or the copy of the speech alleged to have been made by the then Prime Minister is not produced by the petitioner. The petitioner has not mentioned as to what impact the Prime Minister''s speech had on the election. It is also significant to note that in paragraph 3(a)(iv) it is not even mentioned that when the Prime Minister made this speech. Going by the allegations in paragraph 4 of the petition it would only indicate that the Government had declared certain policies and the Prime Minister was making announcement_of such policies. That by itself would not come within the purview of corrupt practices mentioned in Section 123 of the Act. Under proviso (B) of Section 123(2) it is specifically mentioned that 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 undue influence. To constitute undue influence as an electoral corrupt practice u/s 123(2) of the Act it must have direct or indirect interference on the part of the candidate or his agent or any other person or with the consent of the candidate or his election agent with the free exercise of any electoral right. It is not mentioned by the petitioner that the alleged speech by the then Prime Minister had any effect of undue influence on the electorate and that he had interfered with the free exercise of electoral right of any of the voters. The allegations contained in paragraph 3(a)(iv) of the election are also not sufficient to raise a cause of action.
7. The learned counsel for the respondent stated that there are other material defects in the petition and, therefore, the same is liable to be dismissed in limine. It is pointed out that the affidavit accompanying the petition was not attested properly. Proviso to Section 83 of the Act says that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Rule 94A of the Conduct of Elections Rules, 1961 further states that the affidavit referred to in the proviso to Sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a Notary or a Commissioner of oaths and shall be in Form 25. In the instant case the affidavit is not in the prescribed form. The affidavit is seen attested by a Senior Superintendent of the Directorate of Treasuries, Trivandrum. In the affidavit it is only mentioned that the same is attested. It is not specifically stated that the affidavit was solemnly affirmed by the petitioner in the presence of the concerned officer. Under Rule 94A the affidavit should be attested by a magistrate of the first class or a Notary or a Commissioner of oaths. The non-production of a proper affidavit is violation of Section 83 of the Act. The election petition is not in proper form and that by itself is a ground for rejection of the same.
8. The Representation of the People Act, 1951 is a complete and self-contained Code within which any right claimed in relation to an election or an election dispute must be found. The scheme would show that an election can be questioned under the statute as provided by Section 80 on the grounds specified u/s 100 of the Act. As already noticed, Section 83 lays down that an election petition shall contain a concise statement of the material facts and set forth full particulars of corrupt practice. It is obligatory on the part of the petitioner to give requisite facts and details of each corrupt practice with clear exactitude. If the election petitioner fails to give such details and the allegations are vague and general, there may not arise a cause of action and the trial of such election petition is unnecessary. The Supreme Court in various decisions emphasised that if the allegations are vague and general and the particulars of corrupt practices are not stated in the pleading, the trial of the election petition cannot be proceeded with and the petitioner should not be allowed to have a "fishing expedition" or to have a "roving enquiry". The allegations in the present petition do not give the details. They are of vague and general character and the names of the parties who alleged to have committed corrupt practices are not mentioned in the petition. The petition is not in accordance with Section 83 of the Act. The failure to produce a proper affidavit also is violation of the provisions of the Act. Under the above circumstances, the allegations in the petition are liable to be struck out under Order VI Rule 16 of the CPC. Therefore, I strike out paragraphs 3 (a)(i) to (iv) of the election petition. As all the grounds urged by the petitioner are bereft of material particulars, the petition is only to be rejected.
9. The petitioner, after having lost the election, has filed this petition without furnishing proper details. The returned candidate has been put to unnecessary hardship by this petition and he is entitled to get reasonable costs. Therefore, I hold that the respondent is entitled to get Rs. 1,000/- as costs. The costs shall be paid out of the security deposit by the petitioner and the balance amount is to be returned to the petitioner.
In the result, the election petition is rejected. The office will intimate the substance of the decision to the Election Commission and the Speaker of the House of the People (Lok Sabha) without any delay. Thereafter an authenticated copy of the decision shall be sent to the Election Commission as per Section 103 of the Act.
