Application No.24 of 2010,Election Petition No.16 of 2009

17th February, 2011

Petitioner Counsel: Mr. M. M. VASHI,Mr. SEAN WASSOODEW,M. P.Vashi and Associates
Respondent Counsel: Mr. V. C. KOTWAL,Mr. SACHINDRA B. SHETYE , Mr. S. V. GAVAND

Cases Cited:
Azar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253 [Para 8,17]

JUDGMENT

JUDGMENT :- The above Civil Application has been filed by the Applicant, who is the original Respondent in Election Petition No.16 of 2009, for the following relief :

"(a) That if be declared that the contents of paragraphs No.11, 12, 13, 17 of the Election Petition which are specified in the copy of the petition annexed at Annexure-A by bracketing the Application No.24/10 in EP No.16/09 pleadings in red ink, do not make out a case that the applicant has committed breach of Section 33-A r/w rule 4-A of the Conduct of Election Rules 1961 r/w the directions/order dated 27th March, 2003 issued by the Election Commission of India and the same be directed to be struck off from the present election petition."

2. In the context of the aforesaid prayer sought by the Applicant/original Respondent, it would be relevant to refer to the challenge raised in the Election Petition on the basis of which the Election of the Applicant/Original Respondent, who is the elected candidate from the Sawantwadi Legislative Assembly Constituency is sought to be set aside.

3. The Petitioner is a voter of the Sawantwadi Legislative Assembly Constituency and he seeks to challenge the election of the Respondent on the ground that the Applicant/Original Respondent has committed breach of Section 33-A of the Representation of People Act 1951 (for short the said Act) r/w Rule 4A of the Conduct of Election Rules, 1961 (for short the said Rules) and the breach of the directions/order dated 27th March, 2003 issued by the Election Commission of India by virtue of the fact that the Respondent has filed a false affidavit in form No.26 and incorrect/incomplete affidavit as per Annexure A of the order dated 27th March, 2003 which according to the Petitioner has been done to misguide the voters by not giving details about the criminal cases pending against him in the said affidavit filed as per Form No.26 and, second affidavit giving wrong/no details of movable and immovable properties. The nomination of the Respondent is, therefore, improperly accepted. It is the further case of the Petitioner that in any event, the acceptance of the nomination of the Respondent is in violation of Section 33-A of the said Act r/w Rule 4-A of the said Rules r/w directions given by the Election Commission of India as contained in the order dated 27th March, 2003. It is the case of the Petitioner that on account of acceptance of the nomination of the Respondent, the election to the said Sawantwadi Legislative Assembly Constituency has been materially affected and therefore the Petitioner seeks the setting aside of the election of the Respondent.

4. In the above Election Petition, a written statement has been filed on behalf of the Respondent dealing with the case made out in the Election Petition. Thereafter the above Application has been filed for striking out whole/part of the said paragraphs as the case may be on the ground that the said paragraphs do not disclose any triable issue on the basis of the said pleadings and, therefore, the said pleadings are liable to be struck off. The paragraphs in respect of which the relief of striking off whole/part of them is sought are reproduced herein under with the whole/part which is required to be struck off are bracketed :

"Para -11 - (The Petitioner states that the Respondent has committed breach of Section 33-A of the said Act r/w 4A of The Conduct of Election Rules 1961 r/w the directions/order dated 27th March, 2003 issued by the Election Commission of India in as much as the Respondent has filed a false affidavit in form No.26 and incorrect/incomplete affidavit as per Annexure A of the order dated 27th March, 2003. In order to misguide voters the Respondent has deliberately not given details about the criminal cases pending against the Respondent in the affidavit filed as per form No.26 and 2nd affidavit giving wrong/no details of movable, immovable properties etc.) Hereto annexed and marked "Exhibit C & D" are the two separate affidavits filed by the Respondent.

Para -12 - The Petitioner states that as the Respondent has not filed affidavit in prescribed form along with the nomination form on or before 3 p.m. on the last date of filing nomination i.e. 25th September, 2009, the returning officer ought to have rejected the nomination of the Respondent straight away without holding any further enquiry and without any objections being raised by any candidates. The directions given by the Election Commission of India dated 27th March, 2003 are issued under Article 324 of the Constitution of India. Therefore, they have a statutory force. The Petitioner states that therefore, the nomination of the Respondent is improperly accepted.

(In any case, the acceptance of the nomination of the Respondent is in violation of section 33-A of the said Act r/w Rule 4-A of the Conduct of Election Rules, 1961 r/w directions given by the election commission of India.)

Therefore, the election of the Respondent is liable to be set aside u/s.100(1)(d)(i) and 100(1)(d)(iv) of the said Act.

Para -13 - The Petitioner states that the Petitioner has cast his vote in the election in question. However, before voting, the Petitioner went to the office of the Sub-Division Officer i.e. the Returning Officer and saw the affidavit of the Respondent displayed by the Sub-Division Officer on the notice board, which gave details about the criminal cases pending against the Respondent and the movable, immovable properties etc. of the Respondent. (After perusing the said affidavit, the Petitioner and other voters of the said constituency got an impression that no criminal cases are pending against the Respondent. Thus, the Respondent has secured highest votes by deliberately filing two false affidavits. The election of the Respondent is also in violation of the law laid down by Supreme Court.)

Para - 17- The Petitioner states that as stated hereinabove by filing separate and/or incomplete affidavits the Respondent has suppressed material facts from the voter like Petitioner. Such suppression and/or misinformation has resulted in the Respondent securing more than 30,000 votes. (The Petitioner states that voters of the said constituency are mainly farmers, fishermen and small traders. The voters vote for candidate against whom no criminal cases are pending and who is honest in disclosing his true assets and liabilities. The Respondent has filed affidavit in form No.26 by showing that no criminal cases are pending against Respondent.) The Respondent has also filed affidavit in prescribed form without showing all the properties and without showing all the liabilities. This has resulted in the Respondent getting the majority of votes. Thus, the result of the respondent is materially affected eut to the breaches of the Respondent pointed out by the Petitioner hereinabove."

5. Reading of the pleadings in respect of which the Application is filed for striking off is in respect of the pleadings concerning the information regarding criminal cases pending against the Petitioner and the conviction suffered by the Petitioner.

6. In the context of the relief sought the provisions contained in the Representation of People Act, 1951 would have to be considered. The said relevant provisions are Section 83 and Rule 4-A of the said Act which are quoted herein under :

"Section 83: Contents of petition (1) An election petition - (a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) 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 corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure,1908 (5 of 1908) for the verification of (Provided 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.)

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the Petition."

"Rule 4-A. Form of affidavit to be filed at the time of delivering nomination papers- The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the First Class or a Notary in Form 26."

7. Section 83 of the said Act postulates the contents of an election petition. Clause (a) of Section 83(1) is relevant which obligates upon the Petitioner to give a concise statement of the material facts on which the Petitioner relies. Rule 4-A contemplates an affidavit to be sworn by the candidate before a Magistrate of the First Class or a Notary in Form 26. Form 26 is in respect of the details of the pending criminal cases against a candidate or conviction which he has suffered.

8. The burden caste on an Election Petitioner is well enunciated in the exposition of the Apex Court in the case of Azar Hussain Vs. Rajiv Gandhi reported in AIR 1986 SC 1253. Para 11 of the said judgment is relevant and the same is reproduced hereinunder :

"In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant N. Balkrishna & Anr. Vs. George Fernandez & Ors., [1969] 3 S.C.C. 239, has expressed itself in no unclear terms 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. So also in Udhav Singh Vs. Madhav Rao Scindia, [1977]1 S.C.C. 511, the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail."

9. I have heard the learned senior counsel Mr. Kotwal for the Applicant/original Respondent in support of the application and the learned counsel Mr. Vashi for the Original Petitioner, opposing the said application.

10. The learned senior counsel for the Applicant/Respondent drew my attention to the Affidavit in Form 26, copy of which is appended to the above Petition. In Clause (1) of the said Affidavit which is in the prescribed formate, the Respondent has mentioned;

" I am not accused of any offence(s) punishable with imprisonment for two years or more in a pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction.

If the deponent is accused of any such offence(s) he shall furnish the following information :

(i) Case/First information reports No./Nos. :N.A.

(ii) Police station (s) :N.A. District(s) :N. A. State (s) : N.A.

(iii) Section(s) of the concerned Act(s) and short description of the offence(s) for which the candidate has been charged :N.A.

(iv) Court(s) which framed the charge(s) : N.A.

(v) Date(s) on which the charge(s) :N.A.

(vi) Whether all or any of the proceeding(s) have been stayed by any court(s) of competent jurisdiction :N.A."

Resultantly in the Clauses below the said clause (1), the Applicant/Respondent has mentioned as Not Applicable. The learned senior counsel submitted that since the Applicant/Respondent is not an accused in any of offences, it is not necessary for him to mention the details sought by the clauses (i) to (vi) below the said Clause (1).

In so far as Clause (2) is concerned, the learned counsel for the Applicant/Respondent drew my attention to the said Clause which has been filled as under :

"(2) I have not been convicted of an offence(s) (other than any offences) referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8 of the Representation of the People Act, 1951 (43 of 1951) and sentenced to imprisonment for one year or more.

(i) Case/First information reports No./Nos. :N.A.

(ii) Court(s) which punished :N.A.

(iii) Police station (s) :N.A. District(s) : N.A. State (s) : N.A.

(iv) Section(s) of the concerned Act(s) and short description of the offence(s) for which the candidate has been charged :- N.A.

(v) Date(s) on which the sentence(s) was/were pronounced :N.A.

(vi) Whether the sentence (s) has/have been stayed by any court(s) of competent jurisdiction :N.A."

In Clauses (i) to (vi) below the Clause (2) the Applicant/Respondent has mentioned as "Not Applicable" as he has not been convicted of any offences for which the punishment is imprisonment for two years or more.

11. The learned senior counsel for the Applicant/Respondent also drew my attention to another Affidavit which has been filed in terms of the order dated 28th June, 2002. In the said Affidavit, the only criminal case which has been mentioned in Clause (1)(i) of the said Affidavit and for which cognizance has been taken is the offence under Section 188 of the Indian Penal Code and Section 3 of the Maharashtra Prevention of Defacement of Property Act, 1995 being Case No.SCC No.623/2004, for which the learned senior counsel for the Applicant/Respondent submitted that the maximum punishment is of six months. The learned senior counsel submitted that since the maximum punishment for the offence under the said Act is of six months, the Applicant/Respondent, did not mention the said case in the Affidavit in Form 26 as only such offences which carry punishment of one year and maximum period of two years were to be mentioned in the said Affidavit in Form 26.

12. The learned senior counsel for the Applicant/Respondent submitted that the Affidavit in Form 26 and the Affidavit filed under the order issued by the Election Commission were put up on the Notice Board by the Returning Officer and the Petitioner who claims to have been an elector if he had any grievance or complaint about the information in the said Affidavits of the Applicant/Respondent, he should have objected to the same at the time of scrutiny of the nomination, which took place much later in point of time. The Petitioner has obviously not done so, as save and except what has been mentioned in the Petition, no further information is available with the Petitioner. The learned senior counsel for the Applicant/Respondent submitted that the Applicant/Respondent has complied with the said provisions and, therefore, there is no breach or non-compliance of Section 33-A of the said Act or Rule 4-A of the Conduct of Election Rules.

13. The learned senior counsel for the Applicant/Respondent submitted that if the Petitioner had any further information than the information mentioned in the Affidavits filed by the Applicant/Respondent, the Petitioner ought to have mentioned the said material facts in the pleadings. Having not done so, the Petitioner cannot make a vague statement in the Petition that the Applicant/Respondent has committed a breach of Section 33-A r/w Rule 4-A of the Conduct of Election Rules.

14. On the other hand the learned counsel for the Petitioner Shri. Vashi submitted that the pleadings in respect of which the relief of striking off is sought cannot be read in isolation, but have to be read as a whole. The learned counsel for the Petitioner submitted that what is pleaded against the Applicant/Respondent is a breach of Section 33-A r/w Rule 4-A of the Rules. The learned counsel for the Petitioner submitted that it is in the nomination form also that the Respondent is obliged to furnish the information as to whether he is an accused of any offences punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction. The learned counsel for the Petitioner submitted that in view of the breach of Section 33-A r/w Rule 4-A of the said Rules, the election of the Applicant/Respondent can be declared as void under Section 100(1)(d)(i) and (d)(iv).

15. Having heard the learned counsel for the Applicant/Respondent and the learned counsel for the Original Petitioner, and having bestowed my anxious consideration to the rival contentions, in my view, the above Application for striking off of the pleadings is required to be allowed for the following reasons :-

16. It is required to be noted that striking off pleadings sought by the Applicant/Respondent is in respect of the pleadings concerning the information regarding the criminal cases pending against him. The learned senior counsel for the Applicant/Respondent submitted that in so far as the said information is concerned, there is no breach of Section 33-A r/w Rule 4-A of the said Rules as the Respondent has disclosed the relevant information. It is further required to be noted that since no criminal case, for which the punishment is an imprisonment for maximum two years, is pending against the Applicant/Respondent, the Applicant/Respondent in Clause (1) of the Affidavit in Form 26 has stated that he is not accused of any such offence and, therefore, in respect of the information which was sought by in the prescribed format he has mentioned as "Not Applicable" meaning thereby that it was not necessary for him to fill up the said columns as no criminal cases of the category of which the information was required to be given in the said Form 26 were pending against him.

17. Similar was the case in respect of conviction as the Applicant/Respondent has not been convicted of any offences carrying maximum punishment of two years. Since the Petitioner has made allegation of the Applicant/Respondent having filed a false Affidavit, it was incumbent upon the Petitioner to prove the falsity of the said Affidavit by giving material particulars which is the basic requirement in so far as an election petition is concerned, as the Petitioner is seeking setting aside of the election of the Applicant/Respondent on the said ground. However, the Petitioner has failed to give any material particulars but has only made a vague statement that the Respondent has made a false affidavit without stating as to how the said affidavit was false. In my view, therefore, the Petitioner has not, in so far as the criminal cases are concerned, fulfilled his obligation of giving the material particulars in terms of the exposition of the Apex Court in Azar Hussain's case (supra).

18. The submission of the learned counsel for the Petitioner that the pleadings have to be taken as a whole and, therefore, since the Petitioner has not given information in the nomination form, there is non compliance of Section 33-A r/w Rule 4-A of the said Rules. It is pertinent to note that the case made out by the Petitioner in so far as non-compliance is only on the basis that the Applicant/Respondent has filed false affidavit in Form 26 and in terms of the order of the Election Commission. It is not the case of the Petitioner that the Applicant/Respondent has not mentioned the information as regards the pending criminal cases in the nomination form and, therefore, there has been non-compliance of Section 33-A. If such a case was made out, the Applicant/Respondent would have dealt with, such a case of the Petitioner. But in the absence of such pleadings the Petitioner cannot now be allowed to raise a new ground for breach or violation of Section 33-A of the said Act. The said case is also made out for the first time across the bar whilst opposing the Application for striking out the pleadings, therefore, the said submission, in my view, cannot be countenanced at this stage.

19. In my view the Respondent has made out a case for striking off of the pleadings (bracketed portion in red ink in Paras 11, 12, 13 and 17 of the Election Petition) which are accordingly struck off. The above Application therefore stands allowed. No order as to costs.

Application allowed.