Delkar Mohanbhai Sanjibhai v. Patel Natubhai Gomanbhai

This is a second application filed by respondent no.1 for dismissal of the above Election Petition. Respondent no. 1 had earlier filed Application no. 4 of 2009 for dismissal of the petition under Section 86 read with 81(3) and 82 of The Representation of Peoples Act, 1951 (hereinafter referred to as "the R.P. Act"). That application was dismissed by the order dated 19th March 2010. A couple of months thereafter i.e. on 9th June 2010, respondent no.1 filed the present application for dismissal of the petition under Order 7, Rule 2 AEP : 10/2010 11, Code of Civil Procedure. The application is opposed by the petitioner submitting that there is absolutely no merit in the same.

The Election Petition has been filed to declare the election of respondent no.1 from the parliamentary constituency of UO3, Dadra & Nagar Haveli in the 15th Loksabha Elections held on 30th April 2009 as void and to declare the petitioner as the elected candidate in respect of the constituency. The petitioner had contested the election as nominated candidate of Indian National Congress Party, whereas respondent no.1 had contested as nominated candidate of Bharatiya Janata Party. The ground of challenge to the election is that, respondent no.1 himself and his agent and other persons indulged in corrupt practice within the meaning of Section 123(1)(A), 123(2) and 123(3) of the R.P. Act.

The present application has been filed on two grounds. Firstly that part of the grounds alleged in the petition i.e. the grounds at paragraphs 11 to 19 and 19(i), (ii), (iii), (iv) and paragraph 20 of the Election Petition deserve to be struck off since the allegations mentioned therein do not constitute corrupt practices under Section 123 of the R.P. Act. If these paragraphs are excluded, the remaining paragraphs of the petition do not make out any ground whatsoever rendering the petition without cause of action. Secondly that the allegations made in the petition are bereft of necessary particulars and hence the petition does not disclose cause of action for want of 3 AEP : 10/2010 material particulars.

Mr. Joshi, the learned counsel for respondent no.1 submits that Section 123 of the R.P. Act, that describes the acts of corrupt practices, refers to acts of a `candidate’ or his election agent or any other person with the consent of the candidate or his election agent. Therefore, unless a person is a candidate, as defined under the R.P. Act, no act done by him can be said to be a corrupt practice. Section 79(b) of the R.P. Act, defines candidate as a person who has been or claims to have been duly nominated as a candidate at any election. Further Section 34 of the Act provides that a candidate shall not be deemed to be duly nominated for election from a constituency unless he has deposited the amount specified under Section 34 of the Act. Therefore, a person can be said to be a candidate only when he files his nomination papers and also pays the compulsory deposit under Section 34 of the Act. Mr. Joshi, points out that respondent no.1 had filed nomination paper on 8th April 2009 and paid compulsory deposit on the same day, thus fulfilled the definition of candidate only on 8th April 2009. Therefore any act of respondent no.1 on the date prior thereto cannot be said to be a corrupt practice under Section 123 of the R.P. Act. No such allegation can be relevant for challenging the election. He argues that the allegations made at paragraphs 11 to 19 and 19(i)(ii)(iii) (iv) and 20 relate to the incidents prior to 8th April 2009, as such these paragraphs are required to be deleted from the petition, being irrelevant. He further submits that if these paragraphs 4 AEP : 10/2010 are deleted from the petition, the remaining paragraphs therein do not make out any ground for challenge to the election, rendering the petition without cause of action. Mr. Joshi relies upon decision of the Apex Court in Mohan Rawale vs. Damodar Tatyaba Alias Dadasaheb and another, reported in (1994) 2 Supreme Court Cases 392 in support of his submission that allegations relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice.

Mr. Kotwal, the learned Senior Counsel for the petitioner, in fairness concedes that respondent no.1 was duly nominated as a candidate only on 8th April 2009 and therefore, any act done by him prior to that date will not be relevant for the purposes of Section 123 of the R.P. Act. He, however submits that paragraphs 11 to 18 are not set out in the petition as grounds of challenge to the election. These paragraphs serve only as a prelude or preface to the subsequent paragraphs. The averments made therein set out the background for the allegations of corrupt practices made in succeeding paragraph. He points out that paragraph 19 of the petition in fact bears a sub-title of “corrupt practice”. Therefore paragraphs preceding thereto are not even meant to be corrupt practices. Mr. Kotwal submits that the decision of the Apex Court in Mohan Ravale’s case (supra) relied upon by respondent no. 1 does not completely discard such allegations. He points out that in the decision cited, the Apex Court though declared the allegations relating to the period anterior to candidature as 5 AEP : 10/2010 irrelevant to establish the corrupt practice proprio vigore, it did not strike out the allegations from the election petition. It left the contention raised by the petitioner therein, that the allegations were relevant and admissible for other purposes, for the decision of High Court at the appropriate time. He submits that the statements and averments at paragraphs 11 to 18 are relevant as they are introductory in nature and set out the background for the allegations made in the subsequent paragraphs.

The rival submissions make it necessary to first refer to ,in brief, the allegations of corrupt practices at paragraph 19 onwards of the petition and then refer to the averments in the earlier paragraph to find out whether the averments serve as the introduction or background material for the allegations of corrupt practices. Both the advocates have taken me through all the relevant paragraphs of the election petition. At paragraph 19, it is alleged that on 7th April 2009 a meeting styled as shibir was organised by the Silvassa Swaminarayan Temple in the temple complex which was attended to by more than 2200 followers. At around 11.30 am, respondent no.1 attended the shibir escorted by Shri Chinmay Swamy and Dr. Swamy the heads of Swaminarayan Sect. Shri Chinmay Swamy appealed to the gathering to vote for respondent no.1 by stating that he is a BJP candidate and a follower of Swamynarayan Sampraday, who has helped the Sampraday a lot.

The above allegation of unduly influencing inhabitants of Dadra and Nagar Haveli to vote in favour of respondent no.1 playing upon their religious sentiments are preceded by the following averments in the earlier paragraphs at 7 to 18. Dadra and Nagar Haveli Parliamentary Constituency is a tribal area, 8 AEP : 10/2010 having 72 villages and an approximate total no. of 1,54,198 registered voters. In the past 2-3 years, a section of Dadra and Nagar Haveli Parliamentary Constituency had come under the influence of Swamynarayan Sampraday, which is religious sect. Swamynarayan Sampraday Guru is referred to, in Dadra and Nagar Haveli as Divine Holiness, P.P. Pramukh Swamy Maharaj. About 30 years back, the Sampraday established it's 1st temple at Silvassa and over a passage of time, it established 11 temples in different parts of Dadra and Nagar Haveli. There is a big temple under construction on a vast plot land of 12 acres in Silvassa. Apart from the temple, Swamynarayan Sampraday undertakes several activities in the whole of Dadra and Nagar Haveli either in its temples or at local halls or in the residential places of its followers. The activities undertaken include regular shibirs with daily, weekly, monthly and annual schedules. At the shibirs, there is interaction between the Swamy's and villagers. This has built up a brotherhood amongst the Swamynarayani's. The temples also provide food, clothes and for other basic needs of inhabitants of the area. Therefore the Swamy's have a great impact on the minds and lives of the villagers. They are influenced by the speeches of Swamys and interactive shibirs held by them.

Magazine Luhari Times is edited, owned and published by Mr. Lalit Patel, President of Shiv Sena, Dadra and Nagar Haveli. Its April 2009 issue was published at Gita News Network, Near High School, Amli, Silvassa, Dadra and Nagar Haveli, Silvassa. Mr. Hitesh Lad, the 9 AEP : 10/2010 office bearer of BJP is the Bureau Chief of the magazine. The magazine is a mouth piece of BJP-Shiv Sena Alliance and has also been a medium of communication with Swamynarayan followers in Dadara and Nagar Haveli, with BJP-Shiv Sena and other political parties supporting the alliance. Respondent no.1 is the close friend and associate of Mr. Lalit Patel. Both are followers of Swamynarayan Sampraday. Mr. Lalit Patel was an active campaigner of respondent no.1 and addressed several meetings and gatherings in support of candidature of respondent no.1. The issues of Luhari Times for October 2008, November 2008, January 2009 and March 2009 extensively covered activities of respondent no.1 and an interview by him regarding Lok Sabha elections. The Issue also contained reports and photographs of visits of BJP President-Mr. Rajnath Singh, Chief Minister of Gujarat, Mr. Narendra Modi and Chinmay Swamy of Swamynarayan temple. It contained narration by Chinmay Swamy that respondent no. 1 would bring “Ramrajya” in the Union Territory. The main campaigners for respondent no. 1 have been Mr. Lalit Patel, Mr. Deepak Jadhav (his election agent), Fatehsinh Chavan, Janata Dal President, Anil Patel, Ex-BJP candidate and Hirabhai Patel, JDU worker.

As regards paragraphs no.19(i) (ii) (iii) (iv) and 20 of the petition, though the averments therein refer to shibir held on 7th April 2009, the connecting averments are at paragraph 21, wherein it is stated that the photographs of the shibir and the appeal made therein 10 AEP : 10/2010 was used by respondent no.1 after commencement of his candidature.

If one reads the allegations of corrupt practices from paragraph 19 onwards and paragraphs 7 to 18, it becomes clear that the averments in the earlier paragraphs are in the nature of introductory remarks or background information to the allegations of corrupt practices. These averments hence are relevant and admissible for other purposes, though not as the corrupt practices.

The second ground pleaded by respondent no. 1 for dismissal of the petition is that the averments made in the petition of corrupt practices are devoid of material particulars and hence the petition does not disclose cause of action. Mr. Joshi relies upon decisions of the Apex Court in the case of Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, reported in A.I.R. 1987 Supreme Court, 1577 and in the case of Azhar Hussain vs. Rajiv Gandhi, reported in AIR 1986 Supreme Court, 1253., in support of his contention as regards the particulars that have been treated as material particulars by the Apex Court. He submits that in the Azhar Hussain's case, the Court found following particulars as material particulars:- • Allegation of painting of objectionable slogans; -- names of workers employed by the elected candidate or his agents who painted the slogans; • Allegation that returned candidates gave insinuating speeches; -- time, date and place of speeches; • Allegation of display of objectionable poster in the constituency, -- production of copy of poster; -- names and facts spelling out consent of returned candidate or his agent; 11 AEP : 10/2010 • Allegation of distribution of book containing objectionable statements. – averments that the book was published and distributed with consent or knowledge of returned candidate, quoting of offending paragraphs in election petition. • Allegation of distribution of pamphlets relating to personal character of a candidate. -- Particulars as to who printed, published and circulated the pamphlets, when, where and how it was circulated and facts to indicate returned candidate's consent for such distribution. Mr. Joshi argues that the above decision shows that almost every detail of the act of corrupt practices has been treated by the Apex Court as material particular.

The application filed by respondent no.1, does not specify the material particulars that are missing from the petition. Mr. Joshi, however, during the course of his arguments submitted that according to him, the petitioner ought to have stated the text of the appeal made by Chinmay Swamy in the shibir dated 7th April 2009 and the particulars as regards who had printed, published and circulated magazine of Luhari Times and the date and time of circulation. Perusal of the petition shows that at paragraph 19, the petitioner has stated that the meeting of 7th April 2009 was attended by one Gulabbhai Nathubhai Jadhav, who has confirmed that there was an appeal made by Chinmay Swamy in the shibir to vote for respondent no. 1 by stating that he is a BJP candidate and a follower of Swamynarayan Sampraday, who had helped the Sampraday a lot. The appeal was responded to by the gathering by clapping and shouting “Vijay Thase”.