# Prabhat Pandey v. Dimple Yadav & Anr

- **Citation:** (2014) 3 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-03
- **Case number:** Election Petition No. 19 of 2012
- **Bench:** Devendra Pratap Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhat-pandey-v-dimple-yadav-anr-43096
- **Pages:** 23

## Headnote

Representation of People Act 1951Section
86(1)-Application
to
dismiss
election
petition-on
ground
of
non
disclosure
of
particulars
of
corrupt
practices-as per requirement of section
100(i)(b) of the Act-total absence of
charge either bribery or undue influence
in affidavit filed in support of petitionaffidavit-not conformity with prescribed
format in terms of order XVI Rule 15(4)
CPC-even on objection-no effort made to
remove the same-being a practicing
lawyer-held-Court has no option except
to allow the application and dismiss the
petition.
Held: Para-54
Applying,
generally
the
principles
propounded in the above mentioned
decisions, especially those extracted by
the
three
judge
decision
in
G
M
Siddeshwar's case (supra) and in Azhar
Hussain' case (supra), five things are
absolutely clear: (a) Full material facts of
corrupt practice are missing, especially
the pivotal fact of consent; (b) there is
total non compliance of proviso to
Section 83(1) and therefore it is not as
contemplated by Section 81; © total lack
of statement of complete cause of action
in violation of Order VII Rule 11 (a) of
CPC read with Section 83 of the Act; (d)
1190
 INDIAN LAW REPORTS ALLAHABAD SERIES
merely because the returned candidate
was the wife of the sitting Chief Minister,
it cannot be presumed that the alleged
action of the Returning Officer and the
claimed action of her workers and party
leaders could be presumed to have been
taken with her consent, without there
being specific, clear and unambiguous
pleadings to that effect and (e) even if
the respondent had not appeared to
oppose the petition, being a half baked
petition, court could not have given the
verdict in favour of the petitioner.
Case Law discussed:
AIR 1954 SC 210; AIR 1982 SC 983; AIR 1964
SC 1366; (1970) 3 SCC 647 (2); AIR 1984 SC
309; 1994 Supp. (2) Supreme Court Cases
446; 2009 (10) SCC 541; AIR 1969 SC 1201;
AIR 1984 SC 621; (1996(1) SCC 399); 2000(8)
SCC 191; 2012(V) SCC 511; 2013 (4) SCC 799.

## Text

_Characters 0–39,907 of 73,597. This is a partial read: ask again with offset=39907 for what follows._

3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1189
about the credibility of the witnesses and
the appellate court in normal course
would not be justified in reviewing the
same again without justifiable reasons."
82. In view of this pronouncement
of Hon'ble Apex Court as well as
discussion made and conclusion drawn
above, we are of the view that there is no
sufficient ground to disturb the findings as
well as conviction recorded by trial court.
83. Sentence awarded by learned trial
court is not excessive and State has not filed
appeal for enhancement of sentence.
84.
In view of discussion made and
conclusion drawn above, we are of the view
that there is no sufficient ground for
interference in the impugned judgement and
order passed by learned trial court. Appeal
has no merit and is liable to be dismissed.
85. Appeal is dismissed accordingly.
86. Surviving accused appellants
Paras Dubey and Raj Guru are on bail.
They shall surrender before the trial court
for serving sentence within 30 days from
the date of judgement of this Court,
failing which trial court shall ensure their
arrest and shall send them to jail for
serving sentence in accordance with law.
87. Office is directed to send copy
of judgement to trial court for securing
compliance.
88. Lower court record shall be
returned
to
the
concerned
court
immediately.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2014
BEFORE
THE HON'BLE DEVENDRA PRATAP SINGH, J.
Election Petition No. 19 of 2012
Prabhat Pandey
...Petitioner
Versus
Dimple Yadav & Anr.
...Respondents
Counsel for the Petitioner:
In Person, Sri Asit Kumar Roy, Sri M.P.
Sinha, Sri Pradeep Verma, Sri Rajenndra
Kumar Pandey, Sri Sunil Kumar Tiwari, Sri
Vijai Prakash Shukla
Counsel for the Respondents:
Sri K.R. Singh, Sri Bhopendra Nath Singh
Sri H.P. Dubey, Sri Shivam Yadav
Representation of People Act 1951Section
86(1)-Application
to
dismiss
election
petition-on
ground
of
non
disclosure
of
particulars
of
corrupt
practices-as per requirement of section
100(i)(b) of the Act-total absence of
charge either bribery or undue influence
in affidavit filed in support of petitionaffidavit-not conformity with prescribed
format in terms of order XVI Rule 15(4)
CPC-even on objection-no effort made to
remove the same-being a practicing
lawyer-held-Court has no option except
to allow the application and dismiss the
petition.
Held: Para-54
Applying,
generally
the
principles
propounded in the above mentioned
decisions, especially those extracted by
the
three
judge
decision
in
G
M
Siddeshwar's case (supra) and in Azhar
Hussain' case (supra), five things are
absolutely clear: (a) Full material facts of
corrupt practice are missing, especially
the pivotal fact of consent; (b) there is
total non compliance of proviso to
Section 83(1) and therefore it is not as
contemplated by Section 81; © total lack
of statement of complete cause of action
in violation of Order VII Rule 11 (a) of
CPC read with Section 83 of the Act; (d)
1190
 INDIAN LAW REPORTS ALLAHABAD SERIES
merely because the returned candidate
was the wife of the sitting Chief Minister,
it cannot be presumed that the alleged
action of the Returning Officer and the
claimed action of her workers and party
leaders could be presumed to have been
taken with her consent, without there
being specific, clear and unambiguous
pleadings to that effect and (e) even if
the respondent had not appeared to
oppose the petition, being a half baked
petition, court could not have given the
verdict in favour of the petitioner.
Case Law discussed:
AIR 1954 SC 210; AIR 1982 SC 983; AIR 1964
SC 1366; (1970) 3 SCC 647 (2); AIR 1984 SC
309; 1994 Supp. (2) Supreme Court Cases
446; 2009 (10) SCC 541; AIR 1969 SC 1201;
AIR 1984 SC 621; (1996(1) SCC 399); 2000(8)
SCC 191; 2012(V) SCC 511; 2013 (4) SCC 799.
(Delivered by Hon'ble Devendra Pratap
Singh, J.)
1. Heard learned counsel for the
parties on a combined application under
Order 6 Rule 16 read with Order 7 Rule
11 of the Code of Civil Procedure
(hereinafter referred to as the "CPC")
alongwith
another
application
under
Section 86(1) of the Representation of
People Act, 1951 (hereinafter referred to
as the "Act") and also perused the record.
2. The present election petition has
been filed challenging the election of Smt.
Dimpal Yadav, respondent no.1, from the
Kannauj Lok Sabha Constituency No.42
in the By Election held in accordance to
the programme.
3. Briefly, the facts are that Sri
Akhilesh Yadav, the husband of the
respondent no.1 and Leader of the
Samajwadi Party (hereinafter referred as
the "SP") was the elected representative
of the Constituency. In the Assembly
election held for the State of U.P. in
March 2012, the SP came to power and
Sri Akhilesh Yadav became the Chief
Minister and thus vacated the seat. The
Election Commission of India issued a
notification on 30th of May 2012 and
notified the following programme for the
By Election :
Last date of filing nomination -
6.6.2012
Date of scrutiny of nomination -
7.6.2012
Date of withdrawal -9.6.2012
Date of polling -24.6.2012
Date of counting of votes - 27.6.2012
4. In pursuance thereof, three
candidates, including the respondent no.1
had filed their respective nominations.
However, the two other candidates
withdrew
their
candidature
and
accordingly, the respondent no.1 was
declared elected unopposed. It is pleaded
that
the
Voters
Party
International
(hereinafter referred to as the "VPI"), a
non political organization, has a huge
membership in and around Kannauj and,
therefore,
its
Central
Committee
nominated the petitioner, one of its active
members, to contest the seat. It is further
pleaded that the petitioner, in accordance
with the directions of the Central
Committee, prepared his nomination
papers, but members of the SP and its
leaders, with the help of the District
Administration,
did
not
allow
the
petitioner to file his nomination, thus the
present petition.
5. It is urged on behalf of the
respondents in support of the two
applications that the petition is not
maintainable as it has not been filed by
any "candidate" or "elector", as provided
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1191
in Section 81 of the Act and, therefore, it
has to be thrown out on this ground alone.
It is also asserted that the pleadings do not
disclose a complete cause of action as
there is no pleading, even if accepting all
the incidents as correct, that the alleged
incidents were committed with the
consent and knowledge of the respondent
no.1. It is further urged that the petition is
based only on corrupt practices, but the
affidavit in support of the allegation as
prescribed by the proviso to Section 83
(1) of the Act, has not been filed and,
therefore, also the petition does not
disclose a complete cause of action and
cannot be put to trial.
6. To the contrary, it is contended
that the petitioner made all possible
efforts to file his nomination papers
within the time prescribed after depositing
the security, but due to the influence of
the respondent no.1, the Returning Officer
did not accept it and supporters of
respondent no.1 snatched away and tore
the nomination papers. It is further urged
that all the material facts and particulars
have been given with specific details and
it discloses complete cause of action. It is
also urged that being the wife of the
sitting Chief Minister, she was exercising
undue
influence
on
the
District
Administration, including the District
Magistrate and also local leaders of SP
were working in unison to ensure that she
gets elected unopposed. It is further urged
that the affidavit has already been filed
and the second affidavit was not required.
It is also urged that the petition cannot be
dismissed at the threshold as Section 83
of the Act does not find mention in
Section 86. Lastly it is urged that
"consent" on the facts pleaded can be
presumed because the respondent no. 1
colluded with the Returning Officer and
that is why the nomination papers were
not accepted and she had full knowledge
of these facts.
7. Before the Court deals with the
arguments of the respective parties, it
would be appropriate to examine the
nature of the proceedings under the Act.
8. The Constitution Bench of the
Apex Court, more than half a century ago,
in Jagan Nath vs. Jaswant Singh & others
(AIR 1954 SC 210) commented upon the
proceedings of an election petition under
the Act in the following words :
"The general rule is well settled that
the statutory requirements of election law
must be strictly observed and that an
election contest is not an action at law or
a suit in equity but is a purely statutory
proceeding unknown to the common law
and that the court possesses no common
law power. It is also well settled that it is
a sound principle of natural justice that
the success of a candidate who has won at
an
election
should
not
be
lightly
interfered with and any petition seeking
such interference must strictly conform to
the requirements of the law. None of these
propositions
however
have
any
application if the special law itself confers
authority on a Tribunal to proceed with a
petition in accordance with certain
procedure and when it does not state the
consequences of non-compliance with
certain procedural requirements laid
down by it.
It is always to be borne in mind that
though the election of a successful
candidate is not to be lightly interfered
with, one of the essentials of that law is
also to safeguard the purity of the election
process and also to see that people do not
get elected by flagrant breaches of that
1192
 INDIAN LAW REPORTS ALLAHABAD SERIES
law or by corrupt practices. In cases
where the election law does not prescribe
the consequence, or does not lay down
penalty for non-compliance with certain
procedural requirements of that law, the
jurisdiction of the Tribunal entrusted with
the trial of the case is not affected."
It further went on to declare that :
" It is also well settled that it is a
sound principle of natural justice that the
success of a candidate who has won at an
election should not be lightly interfered
with and any petition seeking such
interference must strictly conform to the
requirements of the law."
9. It went on to reiterate the position
in Jyoti Basu & others vs. Debi Ghosal &
others (AIR 1982 SC 983) in the
following words :
"A right to elect, fundamental though
it is to democracy is, anomalously
enough, neither a fundamental right nor a
Common Law Right. It is pure and
simple, a statutory right. So is the right to
be elected. So is the right to dispute an
election. Outside of statute, there is no
right to elect, no right to be elected and no
right to dispute an election. Statutory
creations they are, and therefore, subject
to
statutory
limitation.
An
election
petition is not an action at Common Law
nor in equity. It is a statutory proceeding
to which neither the common law nor the
principles of equity apply but only those
rules which the statute makes and applies.
It is a special jurisdiction, and a special
jurisdiction has always to be exercised in
accordance with the statute creating it.
Concepts familiar to Common Law and
Equity must remain strangers to Election
Law unless statutorily embodied. A Court
has no right to resort to them on
considerations of alleged policy because
policy in such matters, as those, relating
to the trial of election disputes, is what the
statute lays down. In the trial of election
disputes, Court is put in a straight jacket.
Thus
the
entire
election
process
commencing from the issuance of the
notification calling upon a constituency to
elect a member or members right up to the
final resolution of the dispute, if any,
concerning the election is regulated by the
Representation of the People Act, 1951,
different stages of the process being dealt
with by different provisions of the Act.
There can be no election to Parliament or
the State Legislature except as provided
by the Representation of the People Act,
1951 and again, no such election may be
questioned except in the manner provided
by the Representation of the People Act.
So the Representation of the People Act
has been held to be a complete and selfcontained code within which must be
found any right claimed in relation to an
election or an election dispute. .........."
10. In Mohan Singh vs Bhanwar Lal
(AIR 1964 SC 1366 ), the apex court
while dealing with the challenge on
grounds of corrupt practices, speaking
through Justice Shah, commented that :
"The onus of establishing a corrupt
practice is undoubtedly on the person who
sets it up, and the onus is not discharged
on proof of mere preponderance of
probability, as in the trial of a civil suit;
the corrupt practice must be established
beyond reasonable doubt by evidence
which is clear and unambiguous"
11. Again it reiterated the position in
Mahant Shreo Nath v. Choudhry Ranbir
Singh (1970) 3 SCC 647 (2), as follows :
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1193
"A plea in an election petition that a
candidate or his election agent or any
person with his consent has committed a
corrupt practice raises a grave charge,
proof of which results in disqualification
from taking part in elections for six years.
The charge in its very nature must be
established by clear and cogent evidence
by those who seek to prove it. The Court
does not hold such a charge proved
merely on preponderance of probability;
the Court requires that the conduct
attributed to the offender is proved by
evidence which establishes it beyond
reasonable doubt."
12. This position remains unaltered
till date.
13. It is evident from the aforesaid
decisions that the right to challenge an
election is not a common law right but the
right has specially been conferred by the
Act for maintaining the purity of election.
However, when a candidate employs or
adopts any of the corrupt practices
mentioned in the Act, his election should
be set aside where the corrupt practice is
proved. But, the procedure prescribed by
the Act for challenging the election must
be strictly followed and in case there is
non-compliance
of
the
mandatory
provisions or there is any deviation, the
Court will have no other alternative than
to dismiss the election petition. Charge of
corrupt practice has to be proved beyond
reasonable doubt like in criminal cases.
14. Let us now consider the relevant
provisions of the Constitution, the Act
and CPC which have a direct bearing on
the decision of this case.
15.

Article
329(b)
of
the
Constitution of India bars any challenge
to the election of either Houses of
Parliament except through an election
petition as provided under the Act, in the
following words :
"329. Bar to interference by Court in
electoral matters-
(a)..............
(b) no election to either house of
Parliament or to the House or either
House of the Legislature of a State shall
be called in question except by an election
petition presented to such authority and in
such manner as may be provided for by or
under any law made by the appropriate
Legislature."
16. In pursuance of the powers
conferred by the Constitution, the Act was
promulgated wherein Part VI deals with
disputes regarding Elections and therein
Section 80 provides that no election shall
be called in question except through an
election petition under the Act which runs
as below :
"80- Election petitions- No election
shall be called in question except by an
election petition presented in accordance
with the provisions of this Part.
Section 81 of the same Part of the
Act provides as to who and on what
ground can file an election petition
challenging the election :
"81. Presentation of petitions- (1) An
election petition calling in question any
election may be presented on one or more
of the grounds specified in sub-section (1)
of section 100 and section 101 to the High
Court by any candidate at such election
or any elector within forty-five days from,
but not earlier than the date of election of
the returned candidate or if there are
1194
 INDIAN LAW REPORTS ALLAHABAD SERIES
more than one returned candidate at the
election and dates of their election are
different, the later of those two dates.
The same Part contains Section 79
sub-clause (b) which defines the word
"candidate", while sub-clause (d) defines
"electoral right" as follows :
"79. Definitions: In this Part and in
Part VII unless the context otherwise
requires,-
(a)..............
(b) "candidate" means a person who
has been or claims to have been duly
nominated as a candidate at any election.
(c)...............
(d) "electoral right" means the right
of a person to stand or not to stand as, or
to withdraw or not to withdraw from
being, a candidate, or to vote or refrain
from voting at an election:
Section 100 of the same Part
provides for the grounds on which an
election may be held to be void as
follows:
"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) that any nomination has been
improperly rejected; or
(d) ........................
(i) ........................
(ii)
by
any
corrupt
practice
committed in the interest 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,the High Court shall declare the
election of the returned candidate to be
void."
In the same Part Section 83 mandates
as to what should be the contents of an
election petition, as under :
"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 pleadings:
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."
Section 86(1) of the same Part
mandates as to when an election petition
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1195
can be dismissed summarily, in the
following words :
"86. Trial of election petitions- (1)
The High Court shall dismiss an election
petition which does not comply with the
provisions of section 81 or section 82 or
section 117.
Explanation- An order of the High
Court dismissing an election petition
under this sub-section shall be deemed to
be an order made under clause (a) of
section 98".
17. Part VII of the Act deals with
Corrupt Practices and Electoral Offences
wherein Section 123 is a deeming clause
in respect to corrupt practices and
provides as below :-
"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 an election, or
(b) .....................
(B) .........
(a) .........
(b) ..................
Explanation- For the purpose of this
clause the term "gratification" is not
restricted to pecuniary gratifications or
gratifications estimable in money and it
includes any forms of entertainment and
all forms of employment for reward but it
does not include the payment of any
expenses bona fide incurred at, or for the
purpose of, any election and duly entered
in the account of election expenses
referred to in section 78.
2. Under influence, that is to say, any
direct or indirect interference or attempt
to interfere on the part of the candidate or
his agent, or of any other person with the
consent of the candidate or his election
agent, with the free exercise of any
electoral right:
Provided that-
(a)
without
prejudice
to
the
generality of the provisions of this clause
any such person as is referred to therein
who-
(i) threatens any candidate or any
elector, or any person in whom a
candidate or an elector interested, with
injury of any kind including social
ostracism
and
ex-communication
or
expulsion from any caste or community;
or
(ii) ..... shall be deemed to interfere
with the free exercise of the electoral
right of such candidate or elector within
the meaning of this clause;
(b) .............
(3) ...............
(4) ..............
(5) ...............
(6) ...............
7. The obtaining or procuring or
abetting or attempting to obtain or
procure by a candidate or his agent or, by
any other person with the consent of a
candidate or his election agent, any
assistance other than the giving of vote
for the furtherance of the prospects of that
candidate's election, from any person
1196
 INDIAN LAW REPORTS ALLAHABAD SERIES
whether or not in the service of the
Government or belonging to any of the
following classes, namely :-
(a) gazetted officers;
(b) .........
(c)...........
(d) members of police forces
(e)..................
(f) ..................
(g) such other class of persons in the
service of the Government as may be
prescribed:
(h) .............."
18. Section 87 of the Act provides that
an election petition shall be tried as nearly as
possible in accordance to the procedure
prescribed under the CPC. The relevant
provisions of CPC which have a bearing in
the decision of this petition are quoted below :
Order VI Rule XV of C.P.C.
provides as under :
"15. Verification of pleadings :- (1)
Save as otherwise provided by any law for
the time being in force, every pleading shall
be verified at the foot by the party or by one
of the parties pleading or by some other
person proved to the satisfaction of the Court
to be acquainted with the facts of the case.
(2).......
(3) .....
(4) The person verifying the pleading
shall also furnish an affidavit in support
of his pleadings."
and Order VI Rule XVI reads as
under :
"16. Striking out pleadings- The
Court may at any stage of the proceedings
order to be struck out or amended any
matter in any pleading-
(a) which may be unnecessary,
scandalous, frivolous or vexatious, or
(b) which may tend to prejudice,
embarrass or delay the fair trial of the
suit, or
(c) which is otherwise an abuse of
the process of the Court."
Order VII Rule XI makes a provision
for rejecting a plaint, as under:
"11. Rejection of plaint- The plaint
shall be rejected in the following cases:-
(a) where it does not disclose a cause
of action;
(b) .........
(c) ..........
(d)...........
(e)...........
(f).............
19. Let us first consider whether the
petition is liable to be thrown out on the
ground that it has neither been filed by a
''Candidate' nor any ''Elector'
20. It is not the case of the petitioner
that he was an electorate of that
constituency, but it has been filed as a
''Candidate'. It is a pleaded fact that he did
not, or rather, could not file his
nomination papers. It is amply pleaded
that he firstly made an effort to file it on
5th June, 2012 at about 2 pm, tendered his
papers to the Returning Officer along with
security deposit in cash, but she refused to
accept it without disclosing any reason,
presumably on the ground that he should
deposit the security amount in the
Treasury and submit the receipt. He made
another effort on 6th June, 2012 after
depositing the security in the Treasury,
but he was prevented from filing it and his
papers were snatched and torn by the
supporters of respondent no 1 and he was
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1197
confined to an unknown place and
released only after the period of filing had
elapsed.
He
also
alleges
that
the
nomination papers were faxed to the
Election Commission and also sent by
registered post to it. Copy of the
nomination papers together with the
security deposit receipt which was sought
to be filed is also annexed with the
petition and has not been shown to be
wanting in any respect. No doubt the
definition of ''Candidate' as mentioned in
section 79 confines itself to Parts VI and
VII, but help can also be sought from
section 34, which reads as under:
"34. Deposits- (1) A candidate shall
not be deemed to be duly nominated for
election from a constituency unless he
deposits or causes to be deposited-
(a) in the case of an election from a
Parliamentary constituency (a sum of
twenty-five thousand rupees or where the
candidate is a member of a Scheduled
Caste or Scheduled Tribe, a sum of twelve
thousand five hundred rupees]; and
(b)...................
(2) Any sum required to be deposited
under sub-section (1) shall not be deemed
to have been deposited under that subsection unless at the time of delivery of
the nomination paper [under sub-section
(1) or, as the case may be, sub-section (1A) of section 33] the candidate has either
deposited or caused to be deposited that
sum with the returning officer in cash or
enclosed with the nomination paper a
receipt showing that the said sum has
been deposited by him or on his behalf in
the Reserve Bank of India or in a
Government Treasury."
21. Thus, it is clear that if the
pleadings are to be believed, he did tender
the nomination papers and the security in
cash on 5th, but it was unlawfully refused
to be accepted. This is a question which
can be considered only after evidence is
led by the parties. The effort made on 6th
also is a question which can de decided
after evidence. What else was expected of
the petitioner than to tender his papers ?
The definition of the word ''Candidate' is
in two parts. ''Candidate' means a person
who has either in fact filed his nomination
papers, or, a person who claims to have
been
nominated.
The
case
of
the
petitioner squarely falls in the second
part. As already herein above commented
upon, copy of nomination papers together
with security deposit receipt has been
filed but the respondents do not claim that
it is defective in any respect. The Apex
Court in the case of Charan Lal Sahu vs
Giani Zail Singh (AIR 1984 SC 309) was
considering an identical provision and
definition occurring in Presidential and
Vice Presidential Elections Act, where an
election petition was filed by a person
whose nomination papers were rejected as
it was not proposed by the required
number of the electors. It went on to hold
in paragraph 12:
"Thus, the occasion for a person to
make a claim that he was duly nominated
can arise only if his nomination paper
complies with the statutory requirements
which govern the filing of nomination
papers and not otherwise. The claim that
he was ''duly' nominated necessarily
implies and involves the claim that his
nomination papers conformed to the
requirements of the statute. Therefore, a
contestant whose nomination paper is not
subscribed by at least ten electors as
proposers and ten electors as seconders
as required by S. 5B (1)(a) of the Act
cannot claim to have been duly nominated
1198
 INDIAN LAW REPORTS ALLAHABAD SERIES
any more than a contestant who had not
subscribed his assent to his own nomination
can. The claim of a contestant that he was
duly nominated must arise out of his
compliance with the provisions of the Act.
Otherwise, a person who had not filed any
nomination paper at all but who had only
informed the Returning Officer orally that
he desired to contest the election could also
contend that he "claims to have been duly
nominated as a candidate".
22. Therefore, it is still open to the
petitioner to prove that his pleadings are
truthful and he did tender his nomination
papers complete in all respects, together
with security deposit, to the Returning
Officer. Accordingly, at this stage it
cannot be said that the petition can be
thrown out on this ground. Thus, the
argument is rejected.
23. Let us now consider whether all
the material facts for constituting any
corrupt practice have been disclosed and a
complete cause of action has been stated
and whether any affidavit in conformity
with the proviso to Section 83(1) has been
filed because the petition is based only on
corrupt practices.
24. Before dealing with the material
facts and cause of action, it would be
appropriate to consider the settled law on
the issue.
25. The Apex Court in the case of
Azhar Hussain vs. Rajiv Gandhi (AIR
1986
SC
1253),
while
considering
whether the publications were made with
the knowledge or consent of the returned
candidate, has held that the consent
should be detailed in the affidavit and it
spelt out the requirement in the following
words in paragraph 31:
"31. There is no averment to show
that the publication was made with the
knowledge or consent of the returned
candidate when the book was published in
June, 1983. In fact, in 1983 there was no
question of having acted in anticipation of
the future elections of 1985 and in
anticipation of the respondent contesting
the same. In the election petition even the
offending paragraphs have not been
quoted. The petitioner has set out in
paragraphs (a) to (h) the inferences
drawn by him or the purport according to
him. This apart, the main deficiency
arises in the following manner. The
essence of the charge is that this book
containing alleged objectionable material
was distributed with the consent of the
respondent. Even so strangely enough
even a bare or bald averment is not made
as to :
i whom the returned candidate gave
consent;
ii in what manner and how; and
iii. when and in whose presence the
consent was given,
to distribute these books in the
constituency. Nor does it contain any
material particulars as to in which
locality it was distributed or to whom it
was distributed, or on what date it was
distributed. Nor are any facts mentioned
which taken at their face value would
show that there was consent on the part of
the
returned
candidate.
Under
the
circumstances
it
is
difficult
to
comprehend how exception can be taken
to the view taken by the High Court."
26. A three judge bench of the Apex
Court in the case of Subhash Desai vs
Sharad J Rao (1994 Supp (2) Supreme
Court Cases 446 ) while considering the
import of Section 86 vis a vis Section 83
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1199
of the Act after relying upon the decision
in Azhar Hussain's Case, has held that :
" Section 86 vests power in the High
Court to dismiss an election petition
which has not been properly presented as
required by Section 81; or where there has
been non-compliance of Section 82 i.e.
non-joinder of the necessary parties to the
election petition; or for non-compliance
of Section 117 i.e. non-deposit of the
required amount as security for the costs
of the election petition. Section 86 does
not contemplate dismissal of the election
petition
for
non-compliance
of
the
requirement of Section 83 of the Act. But
Section 83 enjoins that an election
petition shall contain concise statement of
material facts, and shall set forth full
particulars of any corrupt practice that the
petitioner alleges, which should be
verified and supported by affidavit, so far
the allegations of corrupt practices are
concerned. This provision is not only
procedural, but has an object behind it; so
that a person declared to have been
elected, is not dragged to court to defend
and support the validity of his election, on
allegations of corrupt practice which are
not precise and detail whereof have not
been supported by a proper affidavit.
Apart from that, unless the material facts
and full particulars of the corrupt
practices are set forth properly in the
election petition, the person whose
election is challenged, is bound to be
prejudiced in defending himself of the
charges, which have been leveled against
him.
In
view
of
the
repeated
pronouncements of this Court, that the
charge of corrupt practice is quasicriminal in nature, the person challenging
an election on the ground of corrupt
practice, cannot take liberty of making
any vague or reckless allegation, without
taking
the
responsibility
about
the
correctness thereof. Before the court
proceeds to investigate such allegations,
the court must be satisfied, that the
material facts have been stated along with
the full particulars of the corrupt practice,
alleged by the petitioner, which have been
duly supported by an affidavit. In cases
where the court finds that neither material
facts have been stated, nor full particulars
of the corrupt practice, as required by
Section 83, have been furnished in the
election petition, the election petition can
be dismissed, not under Section 86 but
under the provisions of the Code of Civil
Procedure, which are applicable read with
Section 83(1) of the Act, saying that it
does not disclose a cause of action...."
27. The aforesaid judgment in Azhar
Hussain's
case
(supra)
was
again
reiterated by the Apex Court in the case of
Ram Sukh vs. Dinesh Aggarwal (2009
(10) SCC 541) where it held that even if a
single material fact is not pleaded, the
cause of action would be incomplete in
the following words in paragraph 20 :
"20. The issue was again dealt with
by this Court in Azhar Hussain v. Rajiv
Gandhi.
Referring
to
earlier
pronouncements of this Court in Samant
N. Balkrishna and Udhav Singh vs.
Madhav Rao Scindia wherein it was
observed that the omission of a single
material fact would lead to incomplete
cause of action and that an election
petition without the material facts is not
an election petition at all, the Bench in
Azhar Hussain case held that all the facts
which are essential to clothe the petition
with complete cause of action must be
pleaded and omission of even a single
material
fact
would
amount
to
disobedience of the mandate of Section
1200
 INDIAN LAW REPORTS ALLAHABAD SERIES
83(1)(a) of the Act and an election
petition can be and must be dismissed if it
suffers from any such vice."
28. The principle enshrined in the
above decision can be crystallized as
such. The facts which constitute corrupt
practice must be stated and should be
correlated to one of the heads mentioned
u/s 123 of the Act. The omission of a
single material fact would lead to an
incomplete cause of action and in the
context of corrupt practice, all the basic
facts which constitutes it, must be
disclosed in the petition. In cases covered
by
section.100(1)(b)
read
with
S.123(1)(b) and (2) consent of the
candidate is of vital importance. This is
not a matter of better particulars but a
material fact and as such indispensable
part of the cause of action. Better
particulars
may
be
furnished
by
amendment in the petition but not a
material fact because, consent, in such
cases is the link to connect the candidate
with the action of another person which
may amount to corrupt practice and lead
topenal consequences. In Azhar Hussain's
case(supra) the apex court has aptly
propounded the litmus test of ascertaining
what are material facts which ought to be
pleaded for stating a complete cause of
action as " whether the court could have
given a direct verdict in favour of the
election petitioner in case the returned
candidate had not appeared to oppose the
election petition on the basis of the facts
pleaded in the petition."
29. Let us now consider the
argument as to whether ''connivance' and
''knowledge' are sufficient to draw a
presumption of consent and whether the
returned candidate would be bound by the
actions of his workers and party leaders. It
has been settled in large number of
decision that the charge of corrupt
practice is quasi criminal in nature and
has to be specifically pleaded and proved
and no amount of evidence can cure a
defective pleading.
30. The Apex Court in the case of
Samant N. Balakrishna vs. George
Fernandez & others (AIR 1969 SC 1201)
has held that after the amendment to the
Act, ''knowledge' or ''connivance' is not
sufficient to infer consent,
in
the
following words in paragraph 50 of the
judgment :
"50. Now it may be stated that mere
knowledge is not enough. Consent cannot
be inferred from knowledge alone. Mr.
Jethamalani relied upon the Taunton
case, (1869) I O' M & H 181 at p.185
where Blackburn, J., said that one must
see how much was being done for the
candidate and the candidate then must
take the good with the bad. There is
difficulty in accepting this contention.
Formerly
the
Indian
Election
Law
mentioned 'knowledge and connivance'
but now it insists on consent. Since
reference to the earlier phrase has been
dropped it is reasonable to think that the
law requires some concrete proof, direct
or circumstantial of consent, and not
merely of knowledge and connivance. It is
significant that the drafters of the election
petition use the phrase "knowledge and
connivance" and it is reasonable to think
that they consulted the old Act and
moulded the case round "knowledge and
connivance"
and
thought
that
was
sufficient."
31. In Daulat Ram Chauhan vs.
Anand Sharma (AIR 1984 SC 621) it has
further gone on to hold in paragraphs 18
3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr.
1201
and 19 that the consent should be
explicitly pleaded in the following words :
"18. We must remember that in order
to constitute corrupt practice, which
entails not only the dismissal of the
election petition but also other serious
consequences
like
disbarring
the
candidate concerned from contesting
future election for a period of six years,
the allegations must be very strongly and
narrowly construed to the very spirit and
letter of the law. In other words, in order
to
constitute
corrupt
practices
the
following necessary particulars, statement
of facts and essential ingredients must be
contained in the pleadings :-
(1) Direct and detailed nature of the
corrupt practice as defined in the Act.
(2) Details of every important
particular must be stated giving the time
place, names of persons, use of words and
expressions, etc.
(3) It must clearly appear from the
allegations that the corrupt practices
alleged were indulged in by (a) the
candidate himself (b) his authorised
election agent or any other person with
his express or implied consent.
19. A person may, due to sympathy
or on his own, support the candidature of
a particular candidate but unless a close
and direct nexus is proved between the
act of the person and the consent given to
him by the candidate or his election
agent, the same would not amount to a
pleading
of
corrupt
practice
as
contemplated by law. It cannot be left to
time, chance or conjecture for the court to
draw an inference by adopting an
involved process of reasoning. In fine, the
allegation must be so clear and specific
that the inference of corrupt practice will
irresistibly admit of no doubt or qualm."
32. In Charan Lal Sahu vs. Giani
Zail Singh (supra) it has gone on to hold
that "connivance" and "consent" are not
one and the same thing in paras 30 and 31
:
"30.
It
is
contended
by
Shri
Shujatullah Khan who appears on behalf
of the petitioners that connivance and
consent are one and the same thing and
there is no legal distinction between the
two concepts......