Application No.7 of 2010,Application No.3 of 2010,Application No.6 of 2010,Application No.2 of 2010,Election Petition No.11 of 2009,Election Petition No.13 of 2009,Election Petition No.14 of 2009,Election Petition No.15 of 2009

24th August, 2010

Petitioner Counsel: Mr. B. D. JOSHI,U. G. DESHPANDE
Respondent Counsel: Mr. RUI RODRIGUES,S. G. TALEKAR,Mr. A. A. KUMBHAKONI,Mr. L. M. ACHARYA,Mr. L. M. ACHARYA,S. M. ACHARYA , R. S. SHEKHAWAT,Mr. L. M. ACHARYA,S. D. VYAS, A. KULKARNI , SANDIP MAHADIK

Cases Cited:
Ram Sukh Vs. Dinesh Aggarwal, 2009 ALL SCR 2340 : A.I.R. 2010 S.C. 1227 [Para 11,26]
Sharifuddin Vs. A. G. Lone, 1980(1) S.C.C. 403 [Para 14]
Sharif-Ud-Din Vs. Abdul Gani Lone, (1980)1 SCC 403 [Para 18]
Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi, 2005(5) ALL MR 581 (S.C.)=A.I.R. 2005 S.C. 2379 [Para 18,33]
Udhav Singh Vs. Madhav Rao Scindia, A.I.R. 1976 S.C. 744 [Para 18]
Azhar Hussain Vs. Rajiv Gandhi, 1986 (Supp) SCC 315 [Para 18]
V. Narayanaswam Vs. C. P. Thirunavukkarasu, A.I.R. 2000 S.C. 694 [Para 18]
Regu Mahesh Alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev, 2004(5) ALL MR 322 (S.C.)=A.I.R. 2004 S.C. 38 [Para 18,25]
Manohar Joshi Vs. Nitin Bhaurao Patil, AIR 1996 SC 796 [Para 21]
Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore, AIR 1964 SC 1545 [Para 21]
Ch. Subbarao Vs. Member, Election Tribunal, AIR 1964 SC 1027 [Para 21]
Anil R. Deshmukh Vs. Onkar N. Wagh, AIR 1999 SC 732 [Para 21]
Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh, AIR 2005 SC 22 [Para 21]
Dr. Vijay Laxmi Sadho Vs. Jagdish, AIR 2001 SC 600 [Para 21]
Jyoti Basu Vs. Debi Ghosal, A.I.R. 1982 S.C. 983 [Para 23]
Rahim Khan Vs. Khurshid Ahmed, AIR 1975 SC 290 [Para 24,A]
D. Venkata Reddy Vs. R. Sultan, AIR 1976 SC 1599 [Para 24,A]
Gajanan Bapat Vs. Dattaji Raghobaji Meghe, A.I.R. 1995 S.C. 2284 [Para 30]
Ram Kapse Vs. H. R. Singh, A.I.R. 1996 S.C. 817 [Para 36]
Umesh Challiyal Vs. K. P. Rajendra, 2008(3) ALL MR 488 (S.C.)=A.I.R. 2008 S.C. 1577 [Para 40]

JUDGMENT

JUDGMENT :- These are applications by the Returned Candidate invoking the jurisdiction of this Court under Order 7, Rule 11 of Code of Civil Procedure, 1908 (CPC for short) and seeking dismissal of the Election Petition in limine. Alternatively, it is prayed that the below mentioned paragraphs in each of these Election Petitions be struck off in exercise of the powers conferred upon this Court vide Order 6, Rule 16 of the CPC :-

E.P. No.11/09 (para Nos.14 (a) to 14(s) and 14(t) to 14(w));

E.P. No.13/09 [para 3(i)]

E.P. No.14/09 [para 2((i)]

E.P. No.15/09 [para 3(i)]

2. Application No.7 of 2010 is preferred in Election Petition No.11 of 2009 i.e. By Mr. Kamat Gurudas Vasant, who is respondent No.4 and he states that he contested the elections to the Loksabha in General Elections held in the year 2009 from Mumbai North West Constituency. The elections were declared on 2nd April, 2009 and the programme notified for various stages of the electoral process stated that the same would come into effect on 2nd April, 2009 and continue till 16th April, 2009. It is stated that the nominations were filed within time and after the polling results were declared. He is elected to the Loksabha as he polled the highest number of votes.

3. The petitioner is a voter and his name is mentioned in the Voters' List of Dindoshi in Mumbai North West Electoral Roll at part 99 serial No.647. He states that the Returned Candidate i.e. respondent No.4 is a member of Indian National Congress which is a recognised Political Party. The application seeking dismissal of the election petition proceeds on the basis that amongst several contesting candidates at the poll, respondent No.4 got the highest votes.

4. It is urged that this election petition as filed is liable to be dismissed in limine because it does not disclose any cause of action. In the other election petitions, the petitioners are Voters. The returned candidate in these petitions contested and won from the following Loksabha constituencies :-

E.P. 13-09 (Mumbai South Central Constituency) (Eknath M. Gaikwad)

E.P. 14-09 (Mumbai North Central Constituency) (Dutta Priya Sunil)

E.P. 15-09 (Mumbai South Constituency) (Deora Milind Murli)

5. Each of the above candidates were declared elected at the same General Elections i.e. of 2009. Their elections are questioned and challenged in the other election petitions, wherein identical applications seeking dismissal of the petitions in limine have been made by the returned candidates. These applications invoke identical powers of this Court permitting summary dismissal of election petitions.

6. The stand taken is identical in all these applications viz., that the election petition does not disclose any cause of action. In the affidavits in support of these applications, it is urged by the returned candidates that the only allegation in the election petition is that the Manifesto of Indian National Congress (INC), contains several statements and particularly those reproduced in the election petitions. It is alleged in the petition that the INC who had nominated the returned candidates had assured in its manifesto that -

"For the first time a separate Ministry of Minority Affairs was created in May, 2004 and the Rajinder Sachar Committee was set up to look into the social economic and educational status of Muslim community in the country. The implementation and the recommendations of the Committee is already under way and equal opportunity commission will be established by law. Nearly four lakh scholarships have been awarded in the past few years alone for pre-matric, post matric and professional course, more than 50% of it being awarded to girl students. The Prime Minister's 15 point programme was launched in June, 2006 with physically and financially tracts of minorities in all welfare programmes of Central Government. Special Development taken for the 19 minority districts in different States had been introduced."

7. According to the election petitioner, the returned candidates in the election campaign never expressed publicly their disagreement with the principles and policies set out in the election manifesto of INC. The returned candidate has followed the line of his party election manifesto and used the same for his better performance in the election. Therefore, the elections are vitiated by corrupt practices and particularly the one enlisted in Section 123(3) of the R.P. Act, 1951.

8. It is stated in the affidavit that on such allegations the election is sought to be set aside but this is no pleading of corrupt practice in law. The manifesto of a party cannot be made a basis for alleging corrupt practice and what is required to be pleaded is a specific act covered by section 123 of Representation of Peoples Act, 1951 (R.P. Act for short). In the entire petition, there is no pleading that the returned candidate had at any time appealed to anyone to vote or refrain from voting for any candidate on the basis of his religion. There is no allegation of any agency or consent pleaded either. In such circumstances, the pleading is frivolous and vexatious and if it is struck off then, there is no necessity of holding a trial. In any event, the petition is liable to be dismissed in limine as it fails to disclose any cause of action.

9. The petitioners did not file any affidavit in reply to all the applications but they reiterated the contents of the election petition in two of the reply affidavit. (See E.P. Nos.14 and 15 of 2009).

10. On the basis of this material, these applications were placed for hearing and final disposal. Neither the election petitioner nor the returned candidate sought leave of the Court to file any documents and the matter proceeded on the basis of the averments in the election petition alone. It is urged that the election petition read as a whole and as it is, does not disclose any cause of action. Therefore, it deserves to be dismissed in limine. In other words, assuming that the contents thereof are true, yet, the same does not constitute an allegation of corrupt practice within the meaning of section 123(3) of R.P. Act.

11. Mr. Kumbhakoni, learned Counsel appearing for the returned candidates in support of these applications, along with Mr. L. M. Acharya urged that the law on the point is clear. Section 87 of the R.P. Act makes the Code of Civil Procedure, 1908 (for short CPC) applicable to trial of election petitions. Order 7, Rule 11 sub-clause (d) appears in the CPC. He submits that in a recent decision reported in A.I.R. 2010 S.C. 1227 : [2009 ALL SCR 2340], (Ram Sukh Vs. Dinesh Aggarwal) the Supreme Court has reiterated the principles laid down earlier viz., even if section 83 is not mentioned in section 86(1) of the R.P. Act, yet, by virtue of section 87 of the said Act, this court can take recourse to the CPC and particularly Orders 6, Rules 16 and 7, Rule 11(d) thereof and dismiss the election petitions of the present nature in limine. Mr. Kumbhakoni submits that it is this principle which is being invoked and the request is that the same should be applied because the trial of the election petitions which do not disclose any cause of action entails in loss of precious judicial time. On allegations which do not constitute a corrupt practice in law, there is no necessity to go ahead and hold a trial. There is embarrassment not only to the returned candidate but the constituency as a whole suffers when election of returned candidates are challenged in this manner. Therefore, this is a fit case where this Court should exercise these powers and dismiss the election petition in limine.

12. Mr. Kumbhakoni submits that in each of the election petitions paras referred to by the Returned candidates need to be perused for the purpose of appreciating his submissions. He submits that section 123(3) of the R.P. Act speaks of corrupt practice wherein seeking votes in the name of religion vitiates the elections. In the election petition, the election manifesto of INC is referred and parts thereof are reproduced. The religion of the elected candidate is not mentioned nor is their any pleading with regard to the religion of the election petitioner. There is only reference to the election manifesto and when the essential ingredients of section 123(3) are not at all satisfied, then, reference to the manifesto is not enough. In other words, as part of the allegations and foundation of corrupt practice, the petitioners must aver and prove that the religion of the candidate who has suffered prejudicially was put in issue or votes were sought in the name of religion of the returned candidate. He submits that the words "his religion" are extremely relevant and crucial. The allegation in the election petition is that the manifesto seeks to appease minority community viz., Muslims. However, none of the candidates in the present election is a Muslim. Therefore, by urging that every candidate of INC has based his campaign on the plank of this manifesto means that he seeks votes in the name of religion, is no pleading of corrupt practice within the meaning of section 123(3) of the R.P. Act. Thus, the communal appeal allegedly made in the party manifesto would not suffice and constitute a pleading of corrupt practice under section 123(3) of the R.P. Act.

13. Alternatively and assuming against the returned candidate, that election manifesto is an appeal to the voters and particularly minority voters to vote for INC that is not enough to bring home the charge of corrupt practice which is required to be proved beyond reasonable doubt. The test is as rigorous as in a criminal trial. In such circumstances, when the material fact constituting corrupt practice has not been pleaded, then, the matter need not go for trial. Further, even particulars of usage of election manifesto, including time, place, date where the appeal in the name of religion through the manifesto was made are not set out. Hence, the pleading cannot be said to be complete. In such circumstances, the petition is liable to be dismissed.

14. Mr. Kumbhakoni sought to raise three other objections. He urged that the true copy of the election petition is not attested by the petitioner in his own signature. The attesting is done by petitioner's Advocate and not by the petitioner himself, which is clear if one peruses the petitions and the insertion at the foot of every page of the election petitions. Mr. Kumbhakoni and Mr. Acharya submit that what has been served on the returned candidate is photocopy of the original election petition but it is not attested by the petitioner. There is no compliance with section 81(3) of the R.P. Act. Consequently, the petition is liable to be dismissed under section 86(1) thereof. Reliance in this behalf is placed upon a decision reported in 1980(1) S.C.C. 403 - Sharifuddin Vs. A. G. Lone.

15. It is urged that the affidavit which is required to be filed by virtue of the proviso to section 83(1)(c) of R.P. Act when the foundation of challenge is of corrupt practice, has to be in terms of Rule 94-A of Conduct of Election Rules, 1961 read with Form 25 thereof. In the instant case, the affidavit is not in the prescribed form nor does it answer the requirement of the Rule. The defect is sought to be cured by filing an affidavit after the present applications seeking dismissal of the election petition had been served on the election petitioner. Thus, there is non compliance with this requirement as well and, therefore, the petition is liable to be dismissed.

16. Lastly, it is urged that the election petition is filed on the last date of expiry of the period of limitation prescribed in law. The results have been declared on 16th May, 2009. The period of limitation prescribed by law is 45 days from the date of declaration of results. This period expires on 30th June, 2009. The election petition is filed on 30th June, 2009 at 4.35 p.m.. The security deposit which is required to be made in terms of section 117 of R.P. Act has been accepted at 16.55 p.m.. However, Rule 365 of High Court (O.S.) Rules states that no such deposit could have been accepted beyond the time prescribed in the said rule. Admittedly, the security amount is deposited after 1.00 p.m. and, therefore, the election petition cannot be said to be within time and the same is barred by limitation. There is complete breach of section 117 of R.P. Act. Therefore, the petition is liable to be dismissed for non-compliance with section 117(1) of R.P. Act.

17. In the submission of Mr. Kumbhakoni for all these reasons, the petitions are liable to be dismissed in limine.

18. Mr. Kumbhakoni places reliance on the following decisions in support of his submissions.

1. (1980)1 SCC 403 (Sharif-Ud-Din Vs. Abdul Gani Lone).

2. A.I.R. 2005 S.C. 2379 : [2005(5) ALL MR 581 (S.C.)] (Harmohinder Singh Pradhan Vs. Ranjeet Singh Talwandi & Ors.).

3. A.I.R. 1976 S.C. 744 (Udhav Singh Vs. Madhav Rao Scindia).

4. 1986 (Supp) SCC 315 (Azhar Hussain Vs. Rajiv Gandhi).

5. A.I.R. 2000 S.C. 694 (V. Narayanaswami Vs. C. P. Thirunavukkarasu).

6. (2004)1 S.C.C. 46 : [2004(5) ALL MR 322 (S.C.)] (Regu Mahesh Alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and Anr.).

19. On the other hand, Mr. B. D. Joshi learned Counsel for the election petitioner invites my attention to section 123(3) of the R.P. Act and submits that the argument that the words "his religion" appearing are crucial and conclusive is not sound in law. He invited my attention to section 100(1)(d)(ii) of the R.P. Act and submits that section 123(3) is an exception and the wording thereof cannot be of any assistance while construing this provision which enables the court to declare the elections as void. Once there is a pleading of corrupt practice, then, the particulars can be supplied later on. Mr.Joshi was at pains to point out that non compliance with section 83 cannot be a ground for dismissal of an election petition under section 86(1) of the R.P. Act and the argument of the learned Counsel appearing for the returned candidates over looks this aspect of the matter. Therefore, particulars can be supplied later on and that is matter of evidence. In such circumstances and when manifesto of the party to which each of the returned candidate belongs and on whose behalf they contested, clearly seeking votes in the name of religion by appealing to and appeasing minority citizens and particularly Muslims, then election petition must go for trial and all applications deserve to be dismissed with costs.

20. Mr. Joshi submits that the affidavit in form 25 as contemplated by the proviso to section 83(1)(c) and Rule 94-A of the Conduct of Elections Rules, 1961 has been filed and the requirement of this provision stands complied with. He invites my attention to the affidavit filed by the election petitioner and particularly the one filed on 25th March, 2010 i.e. E.P. No.11 of 2009, in this behalf. Mr. Joshi then submits that the election petition is not liable to be dismissed as barred by limitation. He submits that the returned candidates do not dispute that the petitions have been presented and duly filed on 30th June, 2009, which is within limitation. The manner in which they were accepted and registered is a matter of procedure and there is substantial compliance with all procedural requirements. Once there is substantial compliance, then, election petition is not liable to be dismissed in limine. What is alleged is breach of procedural rules, prevalent on the Original Side of this Court to which the petitions have been presented and duly filed. Rules cannot be elevated to such a status so as to come on par with the substantive provisions of R.P. Act and Conduct of Election Rules. All that R.P. Act requires is security deposit and which has been duly given and accepted. It is not for the returned candidate to question as to how and why the security deposit came to be accepted or how the petition was numbered. In these circumstances and the alleged technical breaches not going to the root of the matter, the petition is not liable to be dismissed. Equally, the election petition cannot be dismissed because the petition is presented by the election petitioner through an Advocate. The true copy of the election petition as filed and duly signed by the petitioner's Advocate has been served on the returned candidate. The copy has been signed and attested by the Advocates and omission on the part of the petitioner to sign the same can never be said to be fatal. Once what has been served is true copy of the original election petition as filed and the returned candidates being unable to demonstrate the prejudice caused to them, then, the omission or non compliance with the requirement of not attesting the true copy can never lead to dismissal of an election petition in limine. More so, when at the foot of every page there is a signature of the election petitioner. The petition is duly signed and verified by the petitioner. Therefore, the petition cannot be dismissed for non compliance with section 81(3) of the R.P. Act. Even otherwise, the view taken by the Hon'ble Supreme Court and this Court is that such technical and procedural lapses should not result in the petitioners being deprived of a trial of the election petition, when there are serious allegations of corrupt practice. For all these reasons, Mr. Joshi submits that petitions be tried in accordance with law.

21. Mr. Joshi relies upon the following decisions in support of his contentions :-

1. A.I.R. 1996 S.C. 796 (Manohar Joshi Vs. Nitin Bhaurao Patil and Anr.).

2. A.I.R. 1964 S.C. 1545 (Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Ors.).

3. A.I.R. 1964 S.C. 1027 (Ch. Subbarao Vs. Member, Election Tribunal).

4. A.I.R. 1999 S.C. 732 (Anil R. Deshmukh Vs. Onkar N. Wagh and Ors.).

5. A.I.R. 2005 S.C. 22 (Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh and Ors.).

6. A.I.R. 2001 S.C. 600 (Dr. Vijay Laxmi Sadho Vs. Jagdish).

22. For properly appreciating the rival contentions, firstly, it would be necessary to refer to the relevant provisions of R.P. Act.

23. In Jyoti Basu Vs. Debi Ghosal reported in A.I.R. 1982 S.C. 983 the Supreme Court has emphasised the object and purpose of R.P. Act, 1951 and particularly the provisions providing for trial of election petition. It is not an ordinary remedy. Just as there is no fundamental right to vote and contest the elections, similarly there is no fundamental right to dispute the result of an election. All these rights are statutory in character and must therefore, be subjected to limitations placed by the Statute. Once this is understood and that the election petitions are not to be equated with ordinary litigation, then, importance of pleading and proof is automatically understood.

24. In the above decision this is what the Hon'ble Supreme Court observed in the above context :-

"7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N. P. Ponnuswami Vs. Returning Officer, Namakkal Constituency, 1952 SCR 218 : (A.I.R. 1952 S.C. 64) and Jagan Nath Vs. Jaswant Singh, A.I.R. 1954 S.C. 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case."

"8. A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say ?"

24-A. An election petition is not a contest between the petitioner and returned candidate but the entire constituency and the voters, who cast their valuable vote at the elections, are interested and affected by the outcome of the same. It is their precious vote in the democratic process of a poll held by secret ballot and the identity of which is not to be disclosed, save and except, mandated by law, which is at trial. Therefore, the proceedings affect the entire constituency. Similarly it throws open the credibility of those in charge of the election machinery. (See AIR 1975 SC 290 - Rahim Khan Vs. Khurshid Ahmed and AIR 1976 SC 1599 - D. Venkata Reddy Vs. R. Sultan).

25. In a recent decision reported in A.I.R. 2004 S.C. 38 : [2004(5) ALL MR 322 (S.C.)] (Regu Mahesh Vs. Rajendra Pratap Bhanj Dev) this is what the Supreme Court has observed :-

"17. An election petition has a definite role in the law relating to election of representatives of the people."

"18. The casual approach of the appellant is not only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practising advocate. An advocate is supposed to know the importance of verification and the advocate is supposed to know the importance of verification and the desirability of making a statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring into focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on the fairness thereof and seeks a declaration that the mandate of the people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun."

25-A. "Election" means the act of choosing a person to fill an office by any manifestation of preference as by ballot. It is the embodiment of the popular will, the expression of the Sovereign power of the people, when understood in the context of Parliamentary elections. The voter selects, from among several candidates, his representative. Thus, a candidate with highest number of votes polled, becomes the Representative of the Parliamentary Constituency. Thus, upon election, he represents the people. People from the constituency that he represents, include all those who have voted for him, against him and also those who did not vote at the poll. The voter is an individual and he can vote for a candidate of any political party or even an Independent contestant without a party tag or label. A party has no vote and only the individual is conferred such a right in law. It is in this backdrop that the Legislature enumerates the corrupt practices in Part-II of the R.P. Act.

25-B. The independence or freedom of choice of the voter is not to be tinkered or interferred with by candidates, their Agents or by persons, with their consent. It is their acts which are deemed to be corrupt practices in law. That is how sub-sections of section 123 read and must be interpreted. One of the corrupt practice is incurring or authorising of expenditure in contravention of Section 77 of R.P. Act. [See Section 123(6)]. This provision will have to be construed in the light of the explanations below Section 77(1) of the R.P. Act. This highlights as to why acts of candidates are alone projected in section 123 of the R.P. Act. The word candidate is also defined in section 79. The definition is also of the term "returned candidate" [see section 79(f)]. This is the reason why the word "his religion" appears in Section 123(3) of R.P. Act.

26. It is in such circumstances that the Supreme Court emphasised the importance of striking off the pleadings, which are frivolous and vexatious so also dismissal of election petitions, which do not disclose any cause of action. In a recent decision on which reliance is placed by Mr. Kumbhakoni and reported in A.I.R. 2010 S.C. 1227 : [2009 ALL SCR 2340] (Ram Sukh Vs. Dinesh Aggarwal) this is what the Supreme Court has observed :-

"16. Now, before examining the rival submissions in the light of the afore-stated legal position, it would be expedient to deal with another submission of learned Counsel for the appellant that the High Court should not have exercised its power either under Order 6, Rule 16 or Order 7, Rule 11 of the Code to reject the election petition at the threshold. The argument is two fold viz., (i) that even if the election petition was liable to be dismissed ultimately, it would have been dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition, and (ii) since section 83 does not find a place in Section 86 of the Act, rejection of petition at the threshold would amount to reading into sub-section (1) of Section 86 an additional ground."

"17. In our opinion, both the contentions are misconceived and untenable. Undoubtedly by virtue of section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the Court trying an election petition can act in exercise of its power under the Code, including Order 6, Rule 16 and Order 7, Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail. Coming to the second limb of the argument viz., absence of section 83 in Section 86 of the Act, which specifically provides for dismissal of an election petition which does not comply with certain provisions of the Act, in our view, the issue is no longer res-integra. A similar plea was negatived by a three Judge Bench of this Court in Hardwari Lal Vs. Kanwal Singh, wherein speaking for the Bench, A. N. Ray, J. (as His Lordship then was) said :- (SCC p.221 para 23) :-

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

"18. The issue was again dealt with by this Court in Azhar Hussain Vs. Rajiv Gandhi. Referring to earlier pronouncements of this Court in Samant N. Balkrishna (AIR 1969 SC 1201) (supra) and Udhav Singh Vs. Madhav Rao Scindia wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice."

27. The question is whether this power should be exercised in the facts and circumstances of the present case.

28. Before that is decided, it would be advantageous to refer to sections 100 and 123 of the R.P. Act. These sections insofar as they are material for the present case are reproduced hereinbelow.

"100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2), if [the High Court] is of opinion-

(a) ......

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) ......

(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected -

(i) ......

(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void,

(iv) ........

123 - Corrupt practice: The following shall be deemed to be corrupt practice for the purpose of this Act -

(1) .....

(2) .....

1. 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.]."

29. If these provisions are perused carefully, it is apparent that as far as section 100 is concerned, it provides the grounds for declaring the elections to be void. That a corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent is a ground for declaring the election of the returned candidate to be void. Similarly, if the result of the election insofar as it concerned the returned candidate has been materially affected by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent would also be a ground for declaring the election of such returned candidate void. This provision merely indicates that the election can be declared as void, provided all ingredients thereof are satisfied. That is a ground on which the court can declare the election as void. Necessarily, therefore, what would constitute a corrupt practice had to be further indicated. That is indicated in Part-VII under Chapter I which is entitled "Corrupt Practices". Part-VII is entitled as "Corrupt Practices and Electoral Offences". Chapter 1 thereof is speaking of corrupt practices. One instance which shall be deemed to be a corrupt practice for the purpose of R.P. Act is an 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 in the name of his religion, race, caste, community or language. Thus, such an act would be deemed to be corrupt practice in law and then the court can declare the election to be void under section 100 of R.P. Act provided other conditions stipulated in section 100 are satisfied. Mr. Joshi's argument that section 100(1)(d)(ii) by itself would enable the Court to declare the election to be void and whether it is to be declared or not can only be decided after the trial, is unacceptable and liable to be rejected straight away. The election can be declared void provided the Court concludes that it is proved that a corrupt practice has been committed. Further, the result of the election, insofar as it concerns the returned candidate, has been materially affected by any corrupt practice committed in his interest by an agent other than his election agent would also enable the court to declare the election void provided the court records its satisfaction as contemplated by section 100(2) of R.P. Act. Therefore, such declarations can be given by the Court only if it is proved that a corrupt practice has been committed. This obliges the election petitioner to plead and prove the class of corrupt practice specified in section 123 of the R.P. Act. If the corrupt practice is not pleaded and proved, then, the question of court declaring the election void on the ground set out in section 100 of R.P. Act does not arise at all. It is only on the pleading of corrupt practice, that the court holds the trial and gives an opportunity to the election petitioner to prove his allegation as pleaded. Pleading is the foundation on which the evidence will be led by the election petitioner. Proof has to be furnished of corrupt practice. The opportunity to furnish proof by leading oral and documentary evidence need not be given in the absence of a pleading of corrupt practice. This distinction is elementary and fundamental but of vital importance in the scheme of Election law.

30. In Gajanan Bapat Vs. Dattaji Raghobaji Meghe, reported in A.I.R. 1995 S.C. 2284, the Hon'ble Justice Mr. A. S. Anand (as the Hon'ble C.J.I. then was), speaking for the bench observed that evidence cannot be allowed to be led by the election petitioner which was beyond pleadings of parties for no amount of evidence can cure a defect in the pleadings but it was all the more improper for the trial court to have allowed the pleadings to be amended so as to be brought in conformity with the evidence already led in the case.

31. Therefore, the opportunity sought by Mr. Joshi on behalf of the election petitioners to lead evidence cannot be granted unless the petitioners satisfy the court that they have pleaded corrupt practice.

32. Corrupt practice which is pressed in this case falls under section 123(3) of the R.P. Act.

33. Analysing the provision and the pleadings necessary for the said corrupt practice to be ultimately held as proved, this is what the Supreme Court has held in the case of Harmohinder Singh Pradan Vs. Ranjeet Singh Talwandi (AIR 2005 SC 2379 : [2005(5) ALL MR 581 (S.C.)]) :

"10. The question arising for decision in this appeal is no more res integra as the point is covered by several decided cases, the most instructive one being Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte & Ors., (1996)1 SCC 130. The emphasis is laid on the word 'his' as it occurs in Section 123(3) of the Act which word was not to be found in the original draft of the provision as enacted but came to be inserted into the text of the provision by the Act 40 of 1961. Reference has been made to the Parliamentary debates and the reasons ascribed by the then Law Minister for the amendment while moving the Bill in the Parliament. The Court has then held that the word 'his' used in sub-section (3) of Section 123 of the Act must have significance and it cannot be ignored or equated with he word 'any' to be brought within the net of sub-section (3). The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of sub-section (3) and this is the only manner in which the word 'his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of religion of the candidate for whom votes are solicited. On the other hand, when the appeal is to refrain from voting for any person on the ground of 'his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. Thus, for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. Sub-section (3) clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub-section (3).

11. So is the view taken by this Court in Kanti Prasad Jayshanker Yagnik Vs. Purshottamdas Ranchhoddas Patel, (1969)1 SCC 455.

"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 an 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 of religion emanating from religious leaders and attributable to the candidate within the meaning of 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."

34. The appeal by a candidate or his agent or by any other person with the consent of the returned candidate or his election agent to vote or refrain from voting to any person on the ground of his religion etc. is a corrupt practice that is committed under section 123(3). Therefore, it is necessary to plead that an appeal of the nature set out in section 123(3) has been made by the candidate or his agent or by any other person with the consent of candidate or his election agent. Secondly, the appeal should be to vote or refrain from voting for any person on the ground of his religion. We are not concerned in this case with the other appeal viz., religious symbols. The argument centres around the alleged appeal to vote in the name of religion. In this behalf, the pleading in the election petition is as under :-

"14(a) INC, the national political party, had published an Election Manifesto with a specific reference to benefits being given by them to "Muslims - Minority" and the provisions of Representation of the People Act, 1951, Sec.123(3), were violated. The respondent No.4, the official candidate of the INC, contested the General Elections, 2009 and was engaged in corrupt practices, in pursuance to section 123(3) of Representation of the People Act, 1951. The relevant portion of the Manifesto reads :-

"For the first time, a separate Ministry of Minority Affairs was created in May, 2004 and the Rajinder Sachar Committee was set up to look into the social, economic and educational status of the Muslim community in the country. The implementation of the recommendations of the Sachar Committee is already under way and an Equal Opportunity Commission will be established by law ....."

"Nearly four lakh scholarships have been awarded over the past two years alone for pre-matric, post matric and professional courses, with more than 50% of these being awarded to girl students. ...."

"The Prime Minister's 15-Point programme was launched in June, 2006 with physical and financial targets for minorities in all welfare programs of the Central Government. A special development package for the 90 minority concentrated districts in different states has been introduced......"

"The Indian National Congress (INC) is irrevocably committed to ensuring that the Constitutional rights of all minorities are protected fully, that the representation of minorities in public administration increases substantially. ...."

"The Indian National Congress (INC) has pioneered reservations for minorities in Kerala, Karnataka and Andhra Pradesh in Government employment and education on the basis of their social and economic backwardness. We are committed to adopt this policy at the national level..."

"A national Unani University will be set up. The corpus of the Maulana Azad Educational Foundation will be doubled."

"(b) The Election Manifestos are drafted with the intention of communicating the policy of the political parties with the voters and the policies are communicated with the voters with the intention of furthering chances of its winning the elections."

"(c) It is a common policy of all the political parties to communicate with the voters by using the tools such as election manifesto and the individual candidates propagate the policy of the party manifested in the manifesto."

"(d) The candidates of the political parties use the policies expressed in the manifesto as a tool to ensure the better results in the elections."

"(e) The candidate contesting the election as an official candidate of a political party is bound to the principle policies expressed in the election manifesto."

35. Thereafter, what is pleaded in para 14(f) is that the manifesto of INC is highly communal and obstructive of unity and integrity of Indian people dividing them into majority and minority and assuring substantial help to the minority community which only means Muslims as per the wording of the manifesto. This is against the provisions of section 123(3) of the R.P. Act. The word "manifesto" means a "Public Declaration of Policy and Aims". In Blacks Law Dictionary, Eighth Edition by Bryan A. Garner, the word is defined as "A written statement publicly declaring the Issuer's principles, policies or intentions".

36. I fail to understand as to how this pleading can answer the requirement of section 123(3) of R.P. Act, 1951. No where in the petition it is alleged that the Manifesto of INC as published, is an appeal by the returned candidate or his agent or by any other person with the consent of returned candidate or his agent to vote or to refrain from voting for any person on the ground of his religion. The criticism of the manifesto of the party and the manifesto making an appeal to the minority community to vote for the candidates of INC is alone made the foundation of corrupt practice. This is not a pleading which would meet the requirement of section 123(3) of the R.P. Act. It is not the case of the Petitioner that the appeal in the manifesto of INC is reiterated by the returned candidate or his agent or any person with the consent of the returned candidate or his agent. The appeal in the Manifesto by itself without anything more, cannot be equated with an appeal to vote or refrain from voting for any person on the ground of his religion within the meaning of section 123(3) of R.P. Act. The returned candidate may have contested the election as a candidate of INC on the basis of this Manifesto and the programme so also the policies set out therein. However mere use of this Manifesto by him for seeking votes without the other ingredients of section 123(3) being attracted cannot be a corrupt practice at the elections. It is not the case of the Election Petitioner that there was any appeal made by the candidate or his agent or by any person with the consent of the returned candidate or his election agent to vote or refrain from voting any person on the grounds of his religion. Such a pleading being absent and no allegation other than the one reproduced above, having been made, it must be held that the Election Petitions do not disclose any cause of action. The appeal in the Manifesto is the basis of corrupt practice but as concluded by me above, something more is required to be pleaded and proved if the Election Petitioners seek a declaration that Election is vitiated by corrupt practice of seeking votes in the name of religion, race, caste, community or language. The Election Petitioners possibly thought that they can seek a declaration u/s.100(1)(b) and 100(1)(d)(ii) by attacking and criticising the Manifesto of INC and that too in parts and or bits and pieces, torn from the context. Even otherwise, Manifesto will have to be read as a whole. In A.I.R. 1996 S.C. 817 (Ram Kapse Vs. H. R. Singh), the Hon'ble Supreme Court ruled that understanding of the Manifesto must be pleaded as the basis of the allegation of corrupt practice. It is very difficult to conclude on the basis of such pleading that any case of corrupt practice has been made out even prima facie. If the pleading is absent then the oral arguments can be of no assistance. Mr. Joshi's faint attempt to draw support from the language of section 100 cannot assist the Petitioner. By such process they cannot obviate the necessity of pleading the precise corrupt practice. The party manifesto, as is clear, sets out the programmes and policies. It highlights them publicly. If it is the foundation of a corrupt practice by the returned candidates in this case, then, without indicating as how the general statements and appeal therein is utilised by them for seeking votes in the name of their religion, the requirement of pleading corrupt practice under section 123(3) is not satisfied in this case. In the facts and circumstances of this case, it can safely be concluded that the pleadings of corrupt practice as envisaged by section 123(3) of R.P. Act, 1961 are deficient and not in accordance therewith. Any larger controversy does not arise for determination and decision in these petitions. If there is no such pleading then I am in agreement with Mr. Kumbhkoni that the Election Petition does not disclose any cause of action.

37. As far as the other pleas in support of the applications for dismissal of the election petition are concerned, I find no substance in them. I am in agreement with Mr. Joshi that substantial compliance has been made with the requirement of serving a true copy of the election petition on the returned candidate. From a perusal of the petition, it is clear that the signature below the words "true copy" is that of the petitioner's Advocate but at the foot of every page the petitioner has placed his initials. Further, the verification of the petition is done by the petitioner in accordance with law and rules. Therefore, and without proof of any prejudice to the returned candidate being shown so also the copies being identical with that of the original in all respects, the prayer of the returned candidates seeking dismissal of these petitions for non-compliance with section 81(3) of the R.P. Act must be rejected.

38. Similarly, the contention based on non filing of the affidavit as required by proviso to section 83(1)(c) read with Rule 94-A of the Conduct of Election Rules, does not survive because the affidavit in the prescribed format has been duly filed. Even the copy of the same is served on the returned candidate. Going by the settled legal principles such an affidavit can be placed on record subsequently and it is not necessary that it should be filed with the petition. That affidavit having been now filed, there is no merit in the contentions in that behalf.

39. Lastly, with regard to the contention that the election petition is time barred and, therefore, deserves to be dismissed as barred by limitation, the objections raised are hyper-technical. There is compliance with the rules inasmuch as the petition and the security deposit, both are within time. It is not the case of the returned candidate that the petition was filed beyond 30th June 2009 i.e 45 days as provided in law. If it is so filed and compliance with the office requisitions took some time, that by itself is no ground, to dismiss the election petitions in limine. All that has happened is that the security deposit has been accepted on the same day, may be beyond prescribed time. If the security deposit is accepted and the procedure and rules of the Original Side in that behalf are substantially complied with, then, even on this count the petition must survive and cannot be dismissed in limine.

40. In this behalf, a reference can be made to the latest decision of the Supreme Court reported in A.I.R. 2008 S.C. 1577 : [2008(3) ALL MR 488 (S.C.)] (Umesh Challiyal Vs. K. P. Rajendra) (see paras 7, 10 and 14).

41. Any larger and wider issue need not be decided in the facts and circumstances of this case. Therefore, I am of the view that the application of the returned candidate must succeed only on the ground of lack of essential pleading of corrupt practice. The petitions are alleging corrupt practice under section 123(3) of R.P. Act and nothing more. Even the argument was restricted to the same. For the reasons indicated herein above, each of the Election Petitions are dismissed for want of cause of action.

42. Considering that Petitions without basic averments are filed and the tendency to question Elections on inadequate pleadings is increasing and attempt to seek roving enquiry needs to be strongly deprecated and discouraged, this is a fit case where heavy costs should be awarded to the returned candidate. Cost needs to be awarded also for wasting of precious judicial time. Therefore, I impose cost on the Election Petitioners and they are directed to pay Rs.10,000/- in each of these Election Petitions to the returned candidates within four weeks from today.

43. Accordingly, Election Petitions are dismissed with costs.

Petition dismissed.