SENTHIBALAJI v. A.P. GEETHA & Ors.

HELD: 1.1 Section 123 of the RP Act of 1951 defines various corrupt practices for the purpose of the said enactment. The corrupt practice has to be qua the election subject matter of challenge in the Election Petition. In paragraph 5, the first respondent has relied upon the representation made by her to the Returning Officer by pointing out that the appellant and 6th respondent have committed misconduct by suppressing the findings of the Election Commission recorded in the order date 27th May 2016. Presumably, paragraph 5 of the petition is in support of the ground of improper acceptance of the nomination papers of the appellant. However, the first respondent has not pleaded that under a particular statutory provision, the appellant and 6th respondent were under an obligation to disclose the order dated 27th May 2016 passed by the Election Commission while filing nomination papers. It is not pleaded how on the ground of the failure to disclose the said order, the appellant and 6th respondent were disqualified from contesting the election. The disqualification must be based on a statutory provision. The first respondent has not pleaded that in law it was the obligation of the appellant to disclose in the nomination paper, the earlier order of the Election Commission by which the election was postponed. The existence of no such obligation is pleaded. Therefore, averments made in paragraphs nos. 4 and 5 of the Election Petition are unnecessary, thereby, attracting clause (a) of Rule 16 of Order VI of CPC. Under clause (a) of Rule 16 of Order VI of CPC, the Court has the power to strike out a pleading which is unnecessary. [Paras 9, 11][553-G; 554-A, C-H]

1.2 Section 123 of the RP Act of 1951 defines corrupt practices. In paragraphs 6 and 7, even bare particulars of any of the corrupt practices covered by Section 123 have not been pleaded. What is the nature of corrupt practice is also not described except for making a bald allegation that in the representations mentioned in paragraph 6, the first respondent has set out electoral misconduct, corrupt practice, and bribery on the part of the appellant. Clause (a) of sub-section (1) of Section 83 mandates that an election petition must contain a concise statement of material facts. When the allegation is of corrupt A B C D E F G H 548 SUPREME COURT REPORTS [2023] 6 S.C.R. practice, the basic facts constituting corrupt practice must be pleaded in order to make compliance with Clause (a) of sub- section (1) of Section 83. In this case, such concise facts are not at all pleaded. Basic facts cannot be pleaded only by stating that the same find place in the documents relied upon. The first respondent has merely stated that the contents of representations may be read as a part of the petition. This does not satisfy the requirement of incorporating a concise statement of material facts. Moreover, when the allegation is of corrupt practice, the proceedings virtually become quasi-criminal. Therefore, the elected candidate must get adequate notice of what is alleged against him. That is why material facts concerning the ground of corrupt practice must be pleaded. The outcome of such a petition is very serious. It can oust a popularly elected representative of the people. Therefore, non-compliance with the requirement of stating material facts must result in the rejection of the petition at the threshold. [Para 13][556-B-F]

1.3 The failure to plead material facts concerning alleged corrupt practice is fatal to the election petition. The material facts are the primary facts which must be proved on trial by a party to establish the existence of a cause of action. In the present case, taking the averments made in the petition as it is, not a single material fact is pleaded making out an allegation of corrupt practice covered by Section 123 of the RP Act of 1951. [Para 15][558-B- C] Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp SCC 93 : [1987] SCR 369; V.S. Achuthanandan v. P.J. Francis & Anr. (1999) 3 SCC 737 : [1999] 2 SCR 99 – relied on.

1.4 Paragraphs 3 and 4 are unnecessary, which do not deal with something which happened after the election was declared. Therefore, the said paragraphs being irrelevant will have to be ordered to be deleted under Rule 16 of Order VI of CPC. Paragraph 5 is not material for the alleged cause of action. Paragraphs 6, 7 and 9 do not disclose any material facts in relation to the allegations of corrupt practices. As material facts regarding allegations of corrupt practice have not been pleaded, the election A B C D E F G H SENTHIBALAJI V. v. A.P. GEETHA AND ORS. 549 petition does not disclose any cause of action as far as the ground of corrupt practice is concerned. Therefore, even these paragraphs deserve to be deleted. The ground of improper acceptance of the nomination paper is not supported by material facts. In any case, the ground of improper acceptance of the nomination paper is no longer relevant as the term of the appellant has already expired. Therefore, in view of the findings which recorded, no purpose will be served by keeping the Election Petition pending. Accordingly, the impugned judgment of the High Court is set aside and the applications filed by the appellant for rejection of the petition and/or for deletion of irrelevant paragraphs are allowed. [Para 21][561-F-G; 562-A-B] M. Karunanidhi v. H.V. Hande & Ors. (1983) 2 SCC 473 : [1983] 2 SCR 629; Mulayam Singh Yadav v. Dharam Pal Yadav & Ors. (2001) 7 SCC 98 : [2001] 3 SCR 1103; Ponnala Lakshmaiah v. Kommuri Pratap Reddy and Ors. (2012) 7 SCC 788 : [2012] 6 SCR 851; Balwan Singh v. Lakshmi Narain & Others [1960] 3 SCR 91 – referred to. Case Law Reference [1987] SCR 369 [1983] 2 SCR 629 [2001] 3 SCR 1103 [1999] 2 SCR 99 [2012] 6 SCR 851 [1960] 3 SCR 91 relied on referred to referred to relied on referred to referred to para 6 para 6 para 6 para 8 para 8 para 8 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3895- 3896 of 2023. From the Judgment and Order dated 23.02.2018 of the High Court of Judicature at Madras in OA Nos. 653 and 654 of 2017. Ranjith Kumar, Sr. Adv., Senthil Jagadeesan, Sajal Jain, Ms. Sonakshi Malhan, Advs. for the Appellant. A B C D E F G H 550 SUPREME COURT REPORTS [2023] 6 S.C.R. A B C D E F G H Balaji Srinivasan, D. Raghu, K. Kathiresan, Devamshu Behl, Scv Vimal Pani, A. Lakshminarayanan, Amit Sharma, Dipesh Sinha, Ms. Pallavi, Ms. Sakshi Upadhyaya, Ms. Aparna Singh, D.kumanan, Mrs. Deepa. S, Sheikh F Kalia, Advs. for the Respondents. The Judgment of the Court was delivered by ABHAY S. OKA, J. FACTUAL ASPECTS

1. These appeals arise out of an Election Petition filed by the first respondent under Section 81 of the Representation of the People Act, 1951 (for short, ‘the RP Act of 1951’). The Election Petition was filed by the first respondent in the Madras High Court questioning the validity of the election of 134 - Aravakurichi Assembly Constituency (for short, “the said Constituency”). Polling was held on 19th November 2016 and the result was declared on 22nd November 2016. The present appellant is the 5th respondent in the Election Petition filed by the first respondent. The present appellant was declared as elected. He was polled 88,068 votes. The 6th respondent in the Election Petition (the 6th respondent in this appeal) was polled 64,407 votes. Only 82 voters voted for the first respondent (Election Petitioner).

2. The first ground of challenge in the Election Petition is the improper acceptance of nomination papers of the appellant and the 6th respondent. The second ground of challenge is that the election is void as the appellant has indulged in corrupt practices. The allegation is that the appellant’s agent and some other persons with the consent of the appellant have indulged in corrupt practices.

3. An application was made by the present appellant inter alia pointing out that no cause of action has been set out in the Election Petition in support of the ground of corrupt practice. It was submitted by the appellant that the Election Petition filed by the first respondent does not disclose any material particulars and material facts about the allegation of corrupt practice. It was contended that the allegations made in paragraphs 3 to 9 are vague and therefore, the said paragraphs deserve to be struck out by exercising the power under Rule 16 of Order VI of the Code of Civil Procedure, 1908 (for short, ‘CPC’). The second prayer was for the rejection of the Election Petition on the ground that the same does not disclose the cause of action. A similar application was also filed by the 6th respondent. By the impugned judgment, the learned Judge of SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] 551 the Madras High Court rejected the applications. While doing so, he observed that the first respondent had forwarded copies of a compact disc, photographs, etc. to the Returning Officer (5th respondent). The learned Judge directed the first respondent to file all relevant documents such as emails, photographs, video footage, etc. which were submitted to the Returning Officer within a period of 15 days from the order. The appellant has challenged the said judgment and order dated 23rd February 2018 by way of this Appeal. SUBMISSIONS

4. Shri Ranjith Kumar, the learned senior counsel appearing on behalf of the appellant has invited our attention to the requirement of clauses (a) and (b) of sub-section (1) of Section 83 of the RP Act of 1951 of incorporating in an election petition a concise statement of material facts and full particulars of any corrupt practice which is allegedly committed by the returned candidate. He pointed out that clause (b) of sub-section (1) of Section 83 also requires the election petitioner to make full statement disclosing the names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. The learned senior counsel also pointed out that initially, the election to the said Constituency was to be held in May 2016. By order dated 14th May 2016, the Election Commission of India (“the Election Commission”) postponed the said election. There was a further order passed on 27th May 2016 by the Election Commission holding that the election of the said Constituency cannot be allowed to proceed and ought to be rescinded so that fresh elections could be held. Accordingly, on 17th October 2016, the Election Commission rescheduled the election to the said Constituency and declared that the polling will be held on 19th November 2016. He pointed out that the first respondent filed a writ petition before the Madras High Court challenging acceptance of the nomination papers of the appellant and 6th respondent. He pointed out that by the judgment and order dated 18th November 2016, the High Court rejected the said writ petition filed by the first respondent and imposed costs on the first respondent.

5. Inviting our attention to the averments made in the Election Petition filed by the first respondent, he pointed out that paragraphs 3 and 4 of the Election Petition give the history of the declaration of the poll and subsequent postponement. Paragraph 5 refers to the fact that the representation made by the first respondent for challenging the validity A B C D E F G H 552 SUPREME COURT REPORTS [2023] 6 S.C.R. A B C D E F of the nomination papers of the appellant and 6th respondent was rejected by the Returning Officer. He pointed out that in paragraph 6 of the Election Petition, the first respondent has relied upon four representations made from 17th November 2016 to 22nd November 2016 to the Returning Officer alleging that the appellant has committed electoral misconduct, corrupt practice, and acts of bribery. It is alleged that the first respondent handed over audio and video clippings to the Returning Officer to prove the allegations in the representations made by email addressed to the Returning Officer. In paragraph 7, the allegation is that result of the election is vitiated due to improper acceptance of the nomination paper of the appellant. Paragraph 8 contains a chart showing the respective votes polled by various candidates. In paragraph 9, it is alleged that the earlier election was cancelled due to misconduct on the part of the appellant and the 6th respondent and that they have suppressed the findings of the Election Commission recorded against them. He submitted that along with the Election Petition, copies of the representations made by the first respondent were filed. He urged that material facts and particulars regarding the alleged corrupt practices are not found in the Election Petition. He submitted that on the basis of the applications made by the appellant, the High Court has directed the first respondent to file copies of emails, photographs, and video footage which do not find place in the list of documents filed along with the Election Petition. He urged that the said direction is per se illegal.

6. Learned senior counsel relied upon decisions of this Court in the case of (i) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi1 (ii) M. Karunanidhi v. H.V. Hande & Ors.2 and (iii) Mulayam Singh Yadav v. Dharam Pal Yadav & Ors.3. He submitted that once the paragraphs in the Election Petition concerning allegations of corrupt practice are struck out, nothing will survive in the Election Petition as the term of the appellant is already over and a fresh election has been held thereafter. G

7. Lastly, the learned senior counsel submitted that while deciding the applications made by the appellant, the High Court could have either allowed the applications or rejected the same. But the High Court has