Sanjay Sayaji Pawar v. Pankaj Chhagan Bhujbal & Ors

Judgment

-

1. Heard learned counsel for the Petitioner and learned counsel for Respondent No. 1 i.e returned candidate.

2. The Petitioner has preferred the present Election Petition praying for declaration that the election of the returned candidate i.e Respondent No. 1 from the Legislative Assembly Constituency Nandgaon of the Maharashtra Legislative Assembly General Election 2009 is void and be set aside. He has further prayed Pg 1 of 27 that the Petitioner be declared as elected from the said constituency. ep 32-09.doc

3. The Petitioner has challenged the election of Respondent No. 1 on the grounds provided under Sections 100(1)(b), 100(1)(d) (ii), 100(1)(d)(iv), 123(1)(A) and 123(4) of the Representation of the People Act, 1951 (for short, hereinafter referred to as 'The Act'.). The said Sections are reproduced hereunder :-

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) a returned candidate, has been materially affected--- that the result of the election, in so far as it concerns (i) …..... (ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or (iii) …..... (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

123. Corrupt practices.-- The following shall be deemed to be corrupt practices for the purposes of this Act:--- [(1) “Bribery”, that is to say,--- (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-- (a) a person to stand or not to stand as, or [to withdraw or not to withdraw] from being a candidate at any election, or Pg 2 of 27 ep 32-09.doc (b) an elector to vote or refrain from voting at an election, or as a reward to ---- (i) a person for having so stood or not stood, or for [having withdrawn or not having withdrawn] his candidature; or (ii) an elector for having voted or refrained from voting; 123 (4) The publication by a candidate or his agent or by any other person [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.

4. A few admitted facts are as under: i. This Election Petition pertains to the Maharashtra Legislative Assembly General Elections 2009. It pertains to Nandgaon Constituency in Maharashtra. The voting took place on

13.10.2009. Results were declared on 22.10.2009 wherein Respondent No. 1 from Nationalist Congress Party was declared elected from Nandgaon constituency. Thereafter, this Election Petition came to be filed by the present Petitioner who was contesting the said election from the Shiv Sena party. ii. Respondent Nos. 2 to 6 are the candidates who also contested the said Assembly election from the same constituency and Respondent Nos. 7 to 20 are the candidates who had filed nomination forms but they withdrew their nominations on or before 29.09.2009 i.e the Pg 3 of 27 date of withdrawal of nomination. Respondent No. 21 is the Returning Officer. ep 32-09.doc

5. Respondent No. 1 has filed Chamber Summons No. 582 of 2010 on various grounds and prayed that the Petition be dismissed for want of compliance of the provisions of Sections 82 and 83 of the Representation of Peoples Act, 1951. After the Chamber Summons was served on the Petitioner, the Petitioner moved Application No. 20 of 2010 for carrying out amendment in the Election Petition.

Firstly, learned counsel for Respondent No. 1 submitted that Respondent Nos. 7 to 20 are not necessary parties as they had withdrawn their candidature in the election. He submitted that as Respondent Nos. 7 to 20 have been made Respondents, there is non-compliance of Section 82 of the Act and as there is non- compliance of Section 82, the case would be covered by Section 86(1) which provides that the High Court shall dismiss an Election Petition which does not comply with Sections 81, 82 and 117 of the Act. He thus, prayed for dismissal of the petition on this ground. To further support his contention, he drew my attention to the prayers made by the Petitioner. Prayer clauses (b) and (c) of the Election Petition are as under:- (b) That this Hon'ble Court be pleased to hold and declare that the election of the return candidate i.e Respondent No. 1 from the Legislative Assembly Constituency Nandgaon (113) of the Maharashtra Pg 4 of 27 ep 32-09.doc Legislative Assembly General Election 2009 is void and further set aside the said election. (c) That this Hon'ble Court be pleased to hold and declare the Petitioner as elected from the said constituency of the said election. Thus, it is clear that not only the Petitioner has prayed that the election of Respondent No. 1 be declared as void and set aside but he has also prayed that he be declared as elected from the said constituency. In view of the contention that there is non- compliance of Section 82 due to which this petition is liable to be dismissed under Section 86(1) of the Act, it would be necessary to refer to Section 82 of the Act which reads thus:-

82. Parties to the petition - A petitioner shall join as respondents to his petition - (a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; (b) any other candidate against whom allegations of any corrupt practice are made in the petition. Thus, as per Section 82, the persons who have withdrawn their candidatures are not at all necessary parties. However, in the present case, the Petitioner has joined candidates who have withdrawn their candidatures as Respondents. In such case, it can be said that there is no compliance of Section 82 of the said Act. On this count, it would be also pertinent to refer to Section Pg 5 of 27 ep 32-09.doc 86(1) of the said Act which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Learned counsel for Respondent No. 1 reiterated that in view of Section 86(1), this Election Petition ought to be dismissed for non- compliance of Section 82. In support of this contention, he placed reliance on a decision of the Supreme Court in the case of K. Kamaraja Nadar Vs Kunju Thevar & Ors1. Paragraph 29 of the said decision reads thus:- " When we come to the provisions of Part VI of the Act relating to disputes regarding elections, we find that there is no definition given in section 79 of the expression "contesting candidate", though there are definitions of "candidate" and "returned candidate" to be found therein. An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in sections 100(i) and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. Where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition. The words "other than the petitioner" are meant to exclude the petitioner when he happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed under section 38, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their 1 A.I.R. 1958 S.C. 687 Pg 6 of 27 ep 32-09.doc candidature within the period prescribed. Such contesting candidates will have to be joined as respondents to such petition irrespective of the fact that one or more of them had retired from the contest under section 55A(2). If the provisions of section 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is enjoined under section 85 of the Act to dismiss the petition and similar are the consequences of non-compliance with the provisions of section 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial. Section 90(3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85. Section 90(3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose. Thus, it is clear that an election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in sections 100(1) and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. Where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition. From the above decision, it is clear that the candidates who had Pg 7 of 27 ep 32-09.doc withdrawn their candidatures are not necessary parties. Thus, as the Petitioner has added the candidates who had withdrawn their candidatures also as Respondents, in view of Section 86(1) it can be termed as, 'non-compliance' of Section 82. However, I may hasten to add that this petition is not being dismissed on this ground alone and there are other grounds for dismissal of the petition which are discussed in the paragraphs herein below.

7. Thereafter, learned counsel for Respondent No. 1 has contended that Section 83 of the Act has not been complied with. He submitted that Section 83(1)(a) of the Act stipulates that the Election Petition shall contain a concise statement of the material facts on which the Petitioner relies and Section 83(1)(b) stipulates that an Election Petition 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. He submitted that in the present case, neither the material facts have been set out in the petition nor full particulars of the alleged corrupt practice are set out in the petition like names of the persons, the date the incident took place, the place at which it took place and other necessary details.

8. The learned counsel for Respondent No. 1 contended that Pg 8 of 27 ep 32-09.doc paragraphs 7 to 13 of the petition have to be struck off under the provisions of Order VI, Rule 16 of the Code of Civil Procedure as the material facts are not found in paragraph Nos. 7 to 13 of the petition. It is further submitted that even the affidavit in support of the allegations do not contain any factual details relating to corrupt practice and the other allegations. There is no concise statement of material facts, neither any full particulars are given nor is there any allegation that the election was materially affected by such acts. There are no precise facts in the petition as to the persons who did the act and the time and place of such acts. The pleadings are roving in nature and ought to be struck off. The Petitioner is seeking to allege serious corrupt practice without any pleadings for the same. No basic and primary facts have been set out in the pleadings as to how the allegation arises and thus, there is no concise statement of material facts and full particulars have not been set out in the petition in support of the allegation of purported corrupt practice and furthermore there is no affidavit in support of this allegation. Thus, he submitted that the petition is lacking in material facts and relevant particulars, hence, the pleadings ought to be struck off and or deleted and the petition ought to be dismissed for non compliance of the provisions of Section 83 of the Act. Learned counsel has submitted that on striking out of the pleadings as above, no triable issue will remain to be tried and consequently the Election Petition ought to be dismissed. Pg 9 of 27 ep 32-09.doc

9. The Petitioner has made an allegation in paragraph 7 that Respondent No. 1, his agents and other persons have conducted public meetings without prior permission of local authorities and further the Petitioner has alleged that they used religious places for conducting the public meetings and is seeking to rely on a compact disc which purportedly shows the conducting of meeting. In my view, the material facts necessary to constitute a pleading of corrupt practice which are missing in the present petition are as follows : a) The material fact of such an allegation ought to be where such meetings were conducted i.e. the exact address as far as possible; b) The material fact of such an allegation is which religious place such meeting was held i.e the exact address; c) The material fact of such an allegation ought to be when such meeting was held i.e date and time; d) The material fact of such an allegation ought to be when the Petitioner has inquired with the Election Commission as to whether the Respondent has taken any permission; e) The material fact of such an allegation ought to contain and would be that the Election Commission has informed the Petitioner that no permission was Pg 10 of 27 ep 32-09.doc taken; f) The material fact of such an allegation would be that the code of conduct was declared on such and such date and thereafter, such a meeting was held; g) The material fact of such an allegation would be which provisions of the Code of Conduct were violated; h) The material fact would be that which person/persons held the public meeting and the name of such person who was present and who informed the Petitioner of such an incident or act and what were the contents of such a meeting; i) The material fact of such an allegation which is missing ought to include whether it was the Respondent No. 1 or this agent or any person with consent of Respondent No. 1 or his agent who had done such an act.

10. The same is the situation as far as the pleadings in paragraph 6 are concerned. The only difference being that in this paragraph, the place is mentioned as the Gurudwara at Manmad. Manmad is a big city, hence where exactly the Gurudwara is situated is not stated whereas it was necessary to state so. The other material facts which was necessary to state are glaringly missing, just as in paragraph 7. I may hasten to add that it is not in each and every case that all the above details are necessary Pg 11 of 27 ep 32-09.doc but in view of the averments in this petition, they would be necessary. Thus, there appears much merit in the submission of the learned counsel for Respondent No. 1 that as the paragraphs are bereft of material facts and particulars, these paragraphs ought to be struck of.

11. In paragraphs 9 and 10 of the Election Petitioner, it is averred as under: The petitioner further submits that on 11th October, 9. 2009 at about 5:00 p.m. one Shri. Dattatraya Balaji Sanap, Police Head Constable at Nandgaon Police Station, Nashik Gramin, Dist. Nashik, called along with other police officials by Police Inspector Shri. Medhe and informed that, he has received information just now from one unknown person that the agents and other persons of the Respondent No.1 are distributing money to the voters at Lohshingave and asked to conduct the raid at the said village and to take appropriate legal action. Accordingly the said Mr. Sanap along with other officers and colleagues went to in the direction of said village and noticed that on the way from opposite side one after one two vehicles are coming altogether driving towards Nandgaon, as per the information. Hence, they stopped the vehicles and took them to the Police Station for investigation. During investigation, it was found that in one car make by Toyota Innova bearing Registration No. MH-04/CJ/1684, they found (1) three boxes of Imperial Blue liquor, 180 ml., each box containing 48 bottles, (2) Prince Country Liquor 71 bottles, 180 ml., (3) 125 T-shirts having photo of Shri. Chagan Bhujbal who is the father of the Respondent No.1, (4) Campaign material of Nationalist Congress Party bearing their symbol of clock, (5) one pistol and in other car make by Toyota Innova bearing Registration No. MH-06/KM/2583, they found 5 bundles of currency notes of Rs. 500, each containing 100 notes, total Rs. 2,50,000/- (Rupees Two Lacs Fifty Thousand only). Accordingly the F.I.R. Has been lodged with the Nandgaon Police Station bearing Crime Registration No. 27 of 2009 under Section 171 H of the Indian Penal Code, 1860 and under Section 135( c ) of Representation of People Act, 1951, and under Section 65 of the Bombay Prohibition Act, and under sections 3, 5 and 25 of Arms Act. The investigation officer prepared the Panchnama of two Panchas, Namely 1) Narendra @ Nandubhau Barku Patil, R/o Sanimandir Chawk, Tal. Nandgaon, Dist: Nashik 2) Rajesh Bahgvat Shinde, R/o Pg 12 of 27 ep 32-09.doc Kailas Nagar, Nandgaon, Tal. Nandgaon, Dist : Nashik, thereafter police recorded the statements of 1. Shri. Valmik Dadabhau Hembade, 2. Shri. Popat Ramkrishan Hembade, 3. Shri. Rohidas Bhagvan Hembade, R/o. Lohasingave, Tal. Nandgaon, Dist: Nashik. Hence for the above referred corrupt practices the election of the returned candidate i.e. Respondent No.1 has to be declared as void. The Petitioner has applied for the copies of the statement and Panchnama but the Police have orally said that they cannot issue the copies because the investigation is in progress and charge sheet is not yet filed. The Petitioner craves leave to refer and rely upon the copies of the said statements and panchnamas as and when produced. Hereto annexed and marked as Exhibit-”D” is the copy of the said F.I.R. Dated 11th October, 2009, Panchnama and Statement. Hereto annexed and marked as Exhibit-”D-1” is the type copy and Exhibit- “D-2” is English Translation copy of the Exhibit-D. The Petitioner further submits that on 12th 10. October, 2009 one Mr. Aba Khairnar resident of Deola Tal. Deola, Dist. Nashik found with cash approximately Rs. 51,500/- (Rupees Fifty One Thousand and Five Hundred only). The said cash was brought with an intention to bribe the electors from the constituency of the Petitioner, to promote and inducing the electors to vote the Respondent No.1. The same has been recorded in a compact disc. Accordingly Shri. Balasaheb Sayaji Pawar lodged an F.I.R. with the Police Station at Erandgaon and the same has been registered being Crime Registration No. 499 of 2009 under section 171(b) (e) of the Indian Penal code, 1860 and Section 123 (1) of the Representation of People Act, 1951. Thereafter the police has prepared the Panchama of 1. Shri. Balu Sardar Shinde, 2. Shri. Ratan Gatlu Pawar both are residing at Arandgaon, Tal. Nandgaon, Dist : Nashik and police has also recorded the statements of 1. Shri. Valmik Laxman Zalte, 2. Vinod Mahadu Deore, 3. Dharma Kalu Deore all residing at Arandgaon, Tal. Malegaon, Dist : Nashik. The Petitioner has applied for the said copies of the Panchanama and statements recorded by the police but police had not issued the same and said that till the filing of the charge sheet the said copies can not be issued, the petitioner craves leave of this Hon'ble Court to refer and rely upon the said copies of the statement and panchnama as and produced. Hereto annexed and marked as Exhibit-”E” is the copy of the F.I.R. And Panchanma. Hereto annexed and marked as Exhibit- “E-1” is type copy and Exhibit- “E-2” is the English Translation of the said F.I.R. Dated 12th October, 2009. Hereto annexed and marked as Exhibit-”E-3” is the Compact Disc showing the incidence when the said accused was found with the cash. The Petitioner craves leave of this Hon'ble Court to refer to and rely upon the Compact Disc and seeks permission of this Hon'ble Court to show the video recording, recorded in Pg 13 of 27 the said Compact Dist. Hence the election of the returned candidate i.e. Respondent No.1 requires to be declared as void. ep 32-09.doc

12. On perusal of paragraph 9, it is found that the said paragraph is bereft of material facts and material which is missing is as follows:- a) The material fact i.e. the name of the persons who was present/were present in the vehicle is not stated, where exactly the vehicles were found or stopped is not stated. b) The material fact is not mentioned i.e. who is the person who informed regarding the alleged distribution of money to the voters. c) The material fact is not mentioned in the paragraph i.e. who distributed the money and to whom and when and how much and for what purpose. d) The material fact would be that a person who ought to be named had distributed money to another named person for voting or refraining from voting or any other purpose. e) The material fact which is missing and ought to be when such money was distributed and who was present and to whom. f) The material facts would be that what the material seized was used for and whether the materials were seized from the persons who are the agents of the Respondent or any other person with his consent, which fact is missing. g) The material fact in the petition ought to be that any act was done by the Respondent No. 1 or his election agent or a person with the Pg 14 of 27 ep 32-09.doc Respondent's or his agent's consent; this material fact is totally missing in the petition. h) The material fact missing in the petition and it ought to be how and what connection the persons who may have been taken for investigation to the police station were connected with Respondent No. 1.

13. As far as the incident in paragraph 10 is concerned i.e in respect of the incident on 12th October, 2009 relating to one Aba Khairnar, there is no material fact pleaded as to how that person is connected with Respondent No. 1 and whether he was agent of Respondent No. 1 or the act was done with the Respondent's or his agent's consent. The said paragraph is bereft of material facts as there is no mention of by whom to whom, when and where such a corrupt practice was committed and what was the effect of such an act. It is also not shown that the assistance of the said Aba was obtained either by the Respondent or his agent or by any other person with the consent of Respondent No. 1 or his election agent. Paragraphs 11 and 12 of the Election Petition reads thus: "11. The Petitioner further submits that even on the date of polling, the polling agents of the Returned Candidate, i.e. Respondent No. 1, at three different polling booths found with violating the code of conduct of election and the provisions of the said Act, as the said polling agents were carrying the list of electoral roll bearing their party symbol i.e Clock, on the electoral roll and thereby appealing the electors for casting their votes to the said party. Hence, the election of the returned candidate i.e Respondent No. 1 is bad in law and requires to be declared as void. Hereto annexed and marked as Exhibit "F" are the Pg 15 of 27 ep 32-09.doc copies of the respective F.I.R. registered with the respective Police Station under section 130 of the Representation of the People Act, 1951. Hereto annexed and marked as Exhibit "F-1 is typed copy and Exhibit "F-2" is English Translation of the respective F.I.R. Hereto annexed and marked as Exhibit "F-3" is the video recording of the compact disc. The Petitioner craves leave of this Hon'ble Court to refer to and rely upon the Compact Disc and seeks permission of this Hon'ble Court to show the video recording, recorded in the said Compact Disc. The Petitioner submits that, (12) Respondent No. 1 has also manipulated the Electronic Voting Machines (EVM) by hiring some electronic engineers. The Petitioner has doubt in his mind that, the Respondent No. 1 by using the technology has manipulated the EVMs. Hereto annexed and marked Exhibit "G" is the Compact Disc showing the manipulation of the EVMs. The Petitioner craves leave to refer to and rely upon the Compact Disc which demonstrates the manipulation of the EVMs and seeks permission of this Hon'ble Court to show the video recording, recorded in the said Compact Disc." As far as paragraph No.11 is concerned, it is found to be extremely vague as it does not state where the incident took place, the time the incident took place and the names of the persons who were involved in the incident. As far as paragraph 12 of the petition is concerned, it does not state the material fact as to how the EVM machines were tampered, in what manner they were tampered so that the Respondent No.1 would get a favourable result. Other material facts are also missing in these two paragraphs.

14. Learned counsel for the Petitioner, on the other hand, submitted that the petition be read as a whole and he has drawn Pg 16 of 27 ep 32-09.doc my attention to ground (b) wherein it is stated that Respondent No. 1, his agents and other persons at the instance of Respondent No. 1 were found using religious places like Gurdwara at Manmad to paste the hoardings and banners and attach the flags to religious places, government properties viz. Mobile Network Towers. He has pointed out that in the said ground, it is clearly stated that the religious places like Gurdwara at Manmad were being used. However, on perusal of this ground, I found it to be vague because it does not give material facts like the date and time when the incident occurred, it does not show which specific Gurdwara at Manmad because Manmad is a very large city, hence, it would not be enough to say place like Gurdwara at Manmad but the exact Gurdwara and where it is situated ought to be stated. Similarly, which are the government properties and where they are situated ought to have been stated. Grounds (c) and (d) speaks of FIR being registered, however, it does not state the names of the persons against whom the FIR is registered, the date of the incident, time and the place where the incident occurred. Thus, material facts are missing in these paragraphs.

15. Grounds (c) and (d) only make a mention of agents of Respondent being arrested but these grounds make no mention of material particulars like names of the so called agents, the date, time of actual incident, place where it took place and how it took place. Thus again material facts are missing. Pg 17 of 27 ep 32-09.doc

16. Learned counsel for the Petitioner has submitted that grounds (e) to (g) state about three separate incidents and the names of polling agents of Respondent No. 1 have been mentioned in these grounds and it is stated that they were found guilty under Section 130 of the said Act and accordingly, FIR was registered against them. As far as finding of the persons 'guilty' is concerned, it is admitted on behalf of the Petitioner that they do not know whether the trial ended in an order of conviction or not. In fact, they are not even aware whether a trial did take place or the persons were discharged. Thus, the statement that certain persons were found guilty under Section 130 of the said Act itself is not correct. Learned counsel for the Petitioner has submitted that in the said ground, it is also stated that the FIR was registered against the said persons. However, again in the ground, the date, time and exact place where the incident took place has not been stated. Thus, these grounds are also vague and lacking in material facts.

17. Thereafter, the learned counsel for the Petitioner has submitted that though the facts may not have been given in the petition, CDs and photographs have been annexed in relation to the incidents. However, in my view, it would not be sufficient because the Election Petition itself has to contain the necessary averments, it should be in the body of the petition itself and not Pg 18 of 27 ep 32-09.doc by way of annexures. The material facts like names of the persons, date, time, the exact place when the incident occurred etc should be stated in the petition. However, these material facts are found missing in the present petition. Sections 83(a) and (b) of the Act are very clear that the Election Petition shall contain a concise statement of facts on which the Petitioner relies and the petition 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. As stated earlier, none of these material facts and particulars are found in the present Election Petition. The Election Petition has to be filed with exactitude which has not been done in the present case. In fact, if the Petitioner had CDs and photographs with him, it is very easy for him to give the names of persons, date, time and place but yet it is missing in the petition. CDs and photographs by themselves cannot be taken into consideration without any averment in the petition in relation to the details of the incident which occurred in the CDs or the photographs. From the CDs or the Photographs,it is not possible to know the date and time when the incident took place nor it is possible to know the names of persons unless the persons have been identified by names in the petition. Similarly, it is not possible to know the place where the incident took place unless the place has been identified in the petition. CDs or photographs Pg 19 of 27 ep 32-09.doc can be made at any point of time and hence, reliance on the same, without there being specific averments giving the material facts in relation thereto in the petition, would not be possible.

18. Learned counsel for Respondent No. 1 again contended that an election petition can be rejected for non-compliance of Section

83. In support of his contention, he has placed reliance on a decision of the Supreme Court in the case of Azhar Hussain Vs Rajiv Gandhi2. In the said decision, the Supreme Court was considering Sections 83, 86 and 87 of the Act in an Election Petition. The Supreme Court observed that an Election Petition can be dismissed for non-compliance of provisions of S. 83 i.e for failure to incorporate in petition material facts and particulars relating to alleged corrupt practice. The Supreme Court further observed that if the petition is found to be bereft of material particulars then power to dismiss can be exercised at threshold. The Supreme Court further observed as under :- "In this case also, no time, date and place of the speeches delivered by the respondent have been mentioned. No exact extracts from the speeches are quoted. Nor have the material facts showing that such statements imputed to the respondent were indeed made been stated. No allegation is made to the effect that it was in order to prejudice the election of any candidate or in order to further the prospects of the election of the respondent. The essential ingredients of the alleged corrupt practice have thus not been spelled out. So far as the meeting is concerned, the principle laid down in Nihal Singh case (1970(3) SCC 239) (supra) discussed in the context of the charge contained in ground II (i) is attracted. The view taken by the High Court, is,therefore, 2 AIR 1986 S.C. 1253 Pg 20 of 27 unexceptionable." ep 32-09.doc

19. There is a glaring omission to mention the names of the workers said to have been employed by the respondent or his agents who have allegedly taken part in the meetings. So also no material facts are given as regards the time and place at which the said meetings have taken place. In fact, no material facts which are necessary have been given in the petition in relation to any incident. I am of the view that as the material facts and particulars in regard to the alleged corrupt practice were not mentioned, it is a glaring lacuna and would fatally affect the case of the Petitioner.

20. The Supreme Court in Nihal Singh v. Rao Birendra Singh3, has observed thus:- ".......The pleading was so vague that it left a wide scope to the appellant to adduce evidence in respect of a meeting at any place on any date that he found convenient or for which he could procure witness. The pleading, in fact, was so vague and was wanting essential particulars that no evidence should have been permitted by the High Court on this point......" This decision applies on all fours in the present case. The averments in the present petition are not sufficient as exact details as far as possible should be given i.e the material facts have to be given which has not been done in this case. 3 (1970) 3 SCC 239 Pg 21 of 27 ep 32-09.doc

21. Learned counsel for Respondent No. 1 also relied on a decision in the case of Lalit Kumar Chaturvedi Vs Jagdish Prasad Thada & Ors. 4. In Paragraph 11 of the said decision, it is held as under: "...................Mere averment that appellant exercised undue influence in absence of precise facts, namely, the nature of such influence, the persons on whom it was exercised and time and place of it the pleadings in paragraphs (i) and (j) fell short of the requirement in law. Allegations fishing and roving, as were pleaded in this case could not be said to be sufficient compliance of Section 83(1)(b)."

22. Useful reference may also be made to the decision of the Supreme Court in the case of Anil Vasudev Salgaonkar Vs Naresh Shigaonkar5 wherein it is observed that even if a single material fact is missing that itself is sufficient to dismiss the Election Petition. In the present case, it is found that no allegation in the pleadings is complete and the material facts are also missing. Thus, a good case is made out for striking of the pleadings therein.

23. The learned counsel for the Petitioner submitted that all material facts have been set out in the petition. He contended that whether in an Election Petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. In order to support his contention, he 4 1990 (Supp) Supreme Court Cases 248 5 (2009) 9 SCC 310 Pg 22 of 27 ep 32-09.doc placed reliance on the decision of the Supreme Court in the case of Mahendra Pal Vs. Ram Dass Malanger6 wherein it is so observed. I am in respectful agreement with the proposition but in the facts of the present case, the material facts and particulars are indeed missing, which would prove to be fatal in the present case. Section 83 provides that the Election Petition must contain a concise statement of the material facts on which the Petitioner relies and further that he must also 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. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Such information should be provided as to make the opposite party understand the case he will have to meet. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement.

24. Learned counsel for the Petitioner submitted that all these preliminary objections have been raised by Respondent No. 1 in 6 AIR 2000 SC 16 Pg 23 of 27 ep 32-09.doc the Chamber Summons. He submitted that the Chamber Summons itself is not maintainable, hence, it cannot be looked into nor any submissions based thereon. Thus, the main objection of the learned counsel for the Petitioner to the Chamber Summons filed by Respondent No. 1 is that the Chamber Summons is not maintainable and Respondent No. 1 ought to have filed an Application. He submitted that as the Chamber Summons is not maintainable in the present case, it ought not to be taken into consideration. However, it is to be considered that the Election Petition is filed on the Original Side. On the Original Side, Chamber Summons are filed for such purpose and not an application. In fact, on the Original Side, applications of this nature are termed as Chamber Summons. Similar contention that a Chamber Summons is not maintainable was raised by the Petitioner in the Election Petition in the case of Rajendra Vithal Raut Vs Gangadhar Dilip Sopal7. In the said case also, the Chamber Summons was opposed and it was stated that the Chamber Summons taken out is not in proper form as required under Rule 126 read with Form No. 12 of Bombay High Court (Original Side) Rules, 1980. However, the Court negatived the contention and the Chamber Summons was made absolute. In two other Election Petitions i.e in the case of Kirit Jayantilal Somaiya (Dr) Vs Sanjay Dina Patil & Ors.8 and in the case of Ram Dular Yashodeo Jha Vs Chief Election Commissioner of 7 2000(4) Bom.C.R. 26 8 2010(5) Bom..C.R. 289 Pg 24 of 27 ep 32-09.doc India 7 Ors.9 Chamber Summons were taken into consideration in Election Petitions by this Court. In the case of Ram Dular Yashodeo Jha, the Chamber Summons was made absolute and the Election Petition came to be rejected. In the case of Kirit Jayantilal Somaiya, the Chamber Summons was partly allowed in the Election Petition. Thus, the contention of the learned counsel for the Petitioner that the Chamber Summons is not maintainable has no merit.

25. Learned counsel for the Petitioner has contended that the Chamber Summons ought not to be entertained and in fact, his Application for amendment be allowed. He submitted that in the amendment, the material facts have been furnished, thus, it cannot be said that the pleadings are incomplete and thus, liable to be struck off. He further submitted that it is possible to make an application for amendment in view of Section 86(5) of the Act. No doubt, Section 86(5) of the Act, does allow amendment, however, it further stipulates that no amendment shall be allowed which will have the effect of introducing particulars of the corrupt practices not previously alleged in the petition. In the present case, on perusal of the amendment, it is seen that in fact a new ground has been made out. The said ground is in fact covered by Section 123(3) of the Act which speaks of corrupt practices in relation to voting or refraining from voting for any person on the 9 Judgment dated 27th November , 2011 in Chamber Summons No. 1669 of 2009 in Election Petition No. 6 of 2009 Pg 25 of 27 ep 32-09.doc ground of his religion. In all four amendments have been sought. In first three paragraphs, it is stated that the appeal was made to the Hindu voters i.e a meeting was convened wherein an appeal was made to "Hindu voters" to vote for "Respondent No. 1" and in the last amendment it is stated that the appeal was made to "Muslim voters" to vote for Respondent No. 1. According to the Petitioner, all these meetings were held without permission from the Election Officer, however, what is pertinent to note is that it speaks of making an appeal to the voters on the basis of their religion. No such ground has been raised in the Election Petition. Thus, it is seen that these are entirely new grounds, hence, amendments cannot be allowed and the application is liable to be dismissed.

26. In the present case, all material facts are missing, hence, the pleadings cannot be considered and would have to be struck off. Hence, as far as the pleadings of corrupt practices are concerned, full particulars thereof have not been stated in the petition as required under Section 83(2) of the Act and as far as the pleadings of corrupt practice and others are concerned, the material facts as required under Section 83(1) of the Act are not stated in the petition. No cause of action is disclosed in the petition. Thus, there is no triable issue in the Election Petition. On this ground itself, the Chamber Summons will have to be made Pg 26 of 27 ep 32-09.doc absolute. In view of the above, I pass the following order:- O R D E R Application No. 20 of 2010 is rejected. Chamber Summons is made absolute in terms of prayer i. ii. clauses (a), (b) and (c). iii. Election Petition stands rejected. [ SMT. V.K. TAHILRAMANI, J ] jfoanz vkacsjdj Pg 27 of 27