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2006(9) Supreme 787
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
Y.K. Sabharwal, CJI., C.K. Thakker & R.V. Raveendran, JJ.
Sathi Vijay Kumar - Appellant
versus
Tota Singh & Ors. - Respondents
Civil) Appeal No. 4093 of 2004
With
Civil Appeal Nos. 5999-6000 of 2004
Decided on 8-12-2006
Counsel for the Parties :
For the Appearing Parties : Ravinder Shrivastava, Sr. Advocate, P.S. Narasimha, Amit Sharma, Anupam Lal Das, Rishi Malhotra, Prem Malhotra, M. Mannan, Kunal Verma, Arjun Garg, Rahul Shrivastava and Rishi Malhotra, Advocates.
(ii) Code of Civil Procedure, 1908 – Order VI, Rule 16 – It is true that the Act does not make any provision as to striking out pleadings – However, general principles as to pleadings in civil suits apply to election petitions as well – Whole purpose of the powers either to dismiss election petitions in limine or striking out unnecessary, scandalous, frivolous or vexatious pleadings is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate – However, if the parties have not offended the rules of pleadings by making averments or raising arguable issues, the Court would not order striking out pleadings – The power to strike out pleadings is extraordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection – High Court was wholly wrong in observing that the allegation regarding deletion of 586 voters from the voters’ list was vague – Further, when all particulars relating to excluded electors were placed in Schedule ‘A’ along with the election petition, it could not be said that the particulars were incomplete or vague and the pleading liable to be struck down.(Paras 24, 28, 29, 30, 35 and 39)
(iii) Representation of People Act, 1951 – Section 123(7) r/w section 83 – After giving details, the petition clearly stated that “the assistance obtained by Shri Tota Singh, respondent No.1, was for furtherance of prospects of his election and, thus, Shri Tota Singh is guilty of corrupt practice within the meaning of Section 123(7) of the Act” – Where the candidate himself (or his election agent) seeks assistance of a gazetted officer, the question of consent does not arise – High Court was, therefore, legally wrong in ordering deletion of para 13(a) on the basis of construction of Section 123(7). (Paras 35, 37 and 40)
Facts of the Case:
(A)Appellant in Civil Appeal No. 4093 of 2004 was a candidate in the general election of the Punjab Constituent Assembly February, 2002. He lost to respondent no.1 by 304 votes. He filed election petition on the ground of corrupt practices. Another defeated candidate also filed election petition on the ground of irregularities and illegalities.
(B)Respondent no.1 contesting the election petitions, inter alia, on ground of non-joinder of necessary party and non-disclosure of cause of action and non-submission of materials facts and particulars.
(C)Findings of the Court: the Non-joinder of Brijendra Singh who was only a substitute candidate and did not contest election, is nor fatal.
(D)By seeking and getting assistance of Gazetted officer for furtherance of prospects of his election, Shri Tota Singh, respondent No.1, was guilty of corrupt practice within the meaning of Section 123(7) of the Act.
JUDGMENT
C.K. Thakker, J. - All these appeals have been instituted by the aggrieved appellants against separate orders passed by the High Court of Punjab & Haryana at Chandigarh.
2. To appreciate the issues raised in the present appeals, relevant facts may be stated in brief.
Sathi Vijay Kumar, appellant in Civil Appeal No. 4093 of 2004 was a candidate in the general election of the Punjab Constituent Assembly from 99, Moga Constituency scheduled to be held in February, 2002. According to the appellant, the Election Commission of India issued a notification for holding election in the State of Punjab. The last date for filing nomination papers as per the programme was January 23, 2002. The appellant filed his nomination paper as a candidate of the Indian National Congress whereas Tota Singh, respondent No.1 was the candidate set up by Shiromani Akali Dal (Badal). The nomination papers were scrutinized on January 24, 2002. The last date for withdrawal of candidature was January 28, 2002. Polling took place on February 13, 2002. Votes were counted on February 24, 2002 and the results were also declared on the same day. The appellant secured 42,275 votes, while respondent No.1 secured 42,579 votes. Thus, there was a difference of 304 votes. Accordingly, the first respondent was declared as successful candidate.
3. On April 8, 2002, the appellant filed a petition being Election Petition No. 13 of 2002 in the High Court of Punjab & Haryana at Chandigarh challenging the election of the first respondent, inter alia, on the ground of corrupt practice. Likewise, one Rampal Dhawan also filed a petition being Election Petition No. 4 of 2002 against the first respondent. So far as Election Petition No. 13 is concerned, the election petitioner (appellant herein) alleged that the first respondent had committed several irregularities and illegalities and at his instance, the authorities had indulged in committing such illegalities to favour the first respondent and increased chances of his being declared as returned candidate and thereby the first respondent got elected by committing corrupt practice. It is also the allegation of the election petitioner that those illegalities and irregularities had materially affected the result and the election of the returned candidate was required to be declared void under the provisions of the Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’) read with the Conduct of the Election Rules, 1961 (hereinafter referred to as ‘the Rules’). Similar was the case of the election petitioner in Election Petition No. 4 of 2004. He also prayed to set aside the election of the successful candidate-respondent No.1 herein.
4. The first respondent filed written statement, inter alia, contending that election petitions filed by the petitioners were not maintainable at law and were liable to be dismissed at the threshold. It was contended that necessary parties who were required to be joined in the election petitions were not joined inasmuch as Brijinder Singh had filed nomination form which had been scrutinized and had been accepted after such scrutiny had not been joined as party respondent. In absence of Brijinder Singh in the election petition as one of the respondents, the petitions were liable to be rejected. It was also contended that since allegations of corrupt practice had been levelled against Brijinder Singh, it was obligatory on the election petitioners to make him a party-respondent which was not done. The said defect was of a fundamental nature and the petitions could not be entertained by the High Court.
5. In respect of Election Petition No. 13 of 2004, it was further contended by the first respondent that the petition was liable to be dismissed on the ground that it did not disclose cause of action. Material facts and full particulars as required by the Act had not been set out in the election petition which went to the root of the matter requiring the dismissal of the petition.
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