# DHARTJPAKAR MADAN LAL AGARWAL v. RAJIV GANDHI

- **Citation:** [1987] 3 S.C.R. 369
- **Court:** Supreme Court of India
- **Decided:** 1987
- **Case number:** Civil Appeal No. 430 of 1982
- **Bench:** E.S. Venkataramiah, K.N. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhartjpakar-madan-lal-agarwal-v-rajiv-gandhi-9745
- **Pages:** 35

## Headnote

B
).
Representation of the People Act, 1950: ss. 77, 80 to 87, 100 and
123-Election petition-Allegations of corrupt practice-Not to be
~ vague or general-scrutiny by Court in a strict manner-Jurisdiction of
Court to strike out pleadings-Empowered at any stage of proceeding
even before filing of written statement-Time limit for enquiry- c
..
Desirability for suitable Parliamentary legislation .
'tCode of Civil Procedure: 0. VI R. 16, 0. VII R. Il, Striking out
of pleadings-Rejection of election petition-Jurisdiction of the Court.
The election of the respondent, who was returned to the Lok
D
Sabha in a bye election in 1981, was challenged by the appellant under
s. 80 of the Representation of the People Act, 1951, on a number of
)- grounds, including the allegations of corrupt practice of undue influenee, hiring and procuring of vehicles for carrying voters and obtaining
the assistance of Government servants and incurring expenses at the
election in excess of the permissible limit. Upon a preliminary objection E
raised by the respondent the High Court struck off the pleadings as
vague, general, unnecessary, frivolous and vexatious within the mean·
~,..., ing of Order VI Rule 16 of the Code of Civil Procedure and rejected the
petition under Order VII Rule 11 read with s. 87 of the Act on the ground
that it did not disclose any cause of action.
·~
F
In the appeal under s. 116-A of the Act against the order of the
High Court, it was contended for the appellant that the High Court had
no jurisdiction to entertain preliminary objections under Order VI Rule
16 or to reject the election petition under Order VII Rule 11 of the Code
before the respondent had med his written statement to the petition'
which deprived him of the opportunity of amending the petition by G
supplying material facts and particulars, that allegations contained in
>
~various paragraphs of the petition constituted corrupt practices which
disclosed cause of action within the meaning of s. 100 of the Act and the
High Court committed error in holding that the petition was defective,
on the premise that it did not disclose any triable issue, and that the
election petition disclosed primary facts regarding corrupt practice and H
369
-
370
SUPREME COURT REPORTS
I 1987] 3.S.C.R.
A if there was absence of any particulars or details the High Court should
have afforded opportunity to the appellant to amend the petition.
The respondent was subsequently returned to the .Lok Sabha in
the general election held in 1984 and the validity of that election has
been upheld in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 and
B Bhagwati Prasad v. Rajiv Gandhi, [1986] 4 SCC 78. The reliefofsetting
-4. -
aside the impugned election hlid thus become infrnctuous by lapse of
time as the subsequent election could not be set aside on the grounds •
raised in the petition. But since s. 98 read with s. 99 of the Act mandates
'
investigation of charges of corrupt practice, if any, raised against the
returned candidate, and as proof thereof entails incurring of disqualifi-
-
c cation from contesting subsequent election for a p€riod of six years, the
Court heard the appeal at length.
~
On the questions: Whether the High Court had jurisdiction to
strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject an election petition under Order VII Rule 11 of that
D Code at the preliminary stage, even though no written statement had
been filed by the respondent, whether in the instant case in entertaining -f
the preliminary objections and rejecting the election petition the High
Court deprived the appellant of an opportunity to amend the petition
and to make good the deficiencies by supplying necessary particulars
and details of the corrupt practices alleged in the petition, and whether
E the various paragraphs of the said election petition disclosed any cause
of action.
~-..
Dismissing the appeal,
HELD: l.1 Right to contest election or to question the election by
~.
F
means

## Text

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I
DHARTJPAKAR MADAN LAL AGARWAL
J
A
v.
RAJIV GANDHI
MAY II, 1987
[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.]
B
).
Representation of the People Act, 1950: ss. 77, 80 to 87, 100 and
123-Election petition-Allegations of corrupt practice-Not to be
~ vague or general-scrutiny by Court in a strict manner-Jurisdiction of
Court to strike out pleadings-Empowered at any stage of proceeding
even before filing of written statement-Time limit for enquiry- c
..
Desirability for suitable Parliamentary legislation .
'tCode of Civil Procedure: 0. VI R. 16, 0. VII R. Il, Striking out
of pleadings-Rejection of election petition-Jurisdiction of the Court.
The election of the respondent, who was returned to the Lok
D
Sabha in a bye election in 1981, was challenged by the appellant under
s. 80 of the Representation of the People Act, 1951, on a number of
)- grounds, including the allegations of corrupt practice of undue influenee, hiring and procuring of vehicles for carrying voters and obtaining
the assistance of Government servants and incurring expenses at the
election in excess of the permissible limit. Upon a preliminary objection E
raised by the respondent the High Court struck off the pleadings as
vague, general, unnecessary, frivolous and vexatious within the mean·
~,..., ing of Order VI Rule 16 of the Code of Civil Procedure and rejected the
petition under Order VII Rule 11 read with s. 87 of the Act on the ground
that it did not disclose any cause of action.
·~
F
In the appeal under s. 116-A of the Act against the order of the
High Court, it was contended for the appellant that the High Court had
no jurisdiction to entertain preliminary objections under Order VI Rule
16 or to reject the election petition under Order VII Rule 11 of the Code
before the respondent had med his written statement to the petition'
which deprived him of the opportunity of amending the petition by G
supplying material facts and particulars, that allegations contained in
>
~various paragraphs of the petition constituted corrupt practices which
disclosed cause of action within the meaning of s. 100 of the Act and the
High Court committed error in holding that the petition was defective,
on the premise that it did not disclose any triable issue, and that the
election petition disclosed primary facts regarding corrupt practice and H
369
-
370
SUPREME COURT REPORTS
I 1987] 3.S.C.R.
A if there was absence of any particulars or details the High Court should
have afforded opportunity to the appellant to amend the petition.
The respondent was subsequently returned to the .Lok Sabha in
the general election held in 1984 and the validity of that election has
been upheld in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 and
B Bhagwati Prasad v. Rajiv Gandhi, [1986] 4 SCC 78. The reliefofsetting
-4. -
aside the impugned election hlid thus become infrnctuous by lapse of
time as the subsequent election could not be set aside on the grounds •
raised in the petition. But since s. 98 read with s. 99 of the Act mandates
'
investigation of charges of corrupt practice, if any, raised against the
returned candidate, and as proof thereof entails incurring of disqualifi-
-
c cation from contesting subsequent election for a p€riod of six years, the
Court heard the appeal at length.
~
On the questions: Whether the High Court had jurisdiction to
strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject an election petition under Order VII Rule 11 of that
D Code at the preliminary stage, even though no written statement had
been filed by the respondent, whether in the instant case in entertaining -f
the preliminary objections and rejecting the election petition the High
Court deprived the appellant of an opportunity to amend the petition
and to make good the deficiencies by supplying necessary particulars
and details of the corrupt practices alleged in the petition, and whether
E the various paragraphs of the said election petition disclosed any cause
of action.
~-..
Dismissing the appeal,
HELD: l.1 Right to contest election or to question the election by
~.
F
means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory
provisions of the Representation of the People Act, 1951, which is
a complete and self contained Code. Outside the statutory provisions,
there is no right to dispute an election. The provisions of the Civil
Procedure Code are applicable to the extent as permissible by s. 87 of
G the Act. [387H-388B]
-1
'
1.2. The scheme of the Act shows that an election can be questioned under the statute as provided by s. 80 on the grounds as contained ins. 100. The pleadings are regulated bys. 83, which lays down a
mandatory provision in providing that an election petition shall contain
H a concise statement of material facts and set forth full particulars of
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M.L. AGARWAL v. RAJIV GANDHI
·.)-
corrupt practices with exactitude. [388C]
371
1.3 Since allegations of corrupt practice are in the nature of
criminal charges, it is necessary that each and every corrupt practice
must be clearly and specifically pleaded and it should be complete in
itself so that the returned candidate may know the case he has to meet.
A
If the allegatipns are vague and general and the particulars of corrupt B
).. practice are not stated in the pleadings the trial of the election petition
cannot proceed for want of cause of action. (388DE]
N.P. Ponnuswami v. Returning Officer, [1952] SCR 218; Jagan
Nath v. Jaswant Singh, AIR 1954 SC 210 and Jyoti Basu v. Debi
Ghosa/, [1982] 3 SCR 318, referred to.
~
2.1 A combined reading ofss. 81, 83, 86 and 87 of the Act makes
it apparent that an election petition is liable to be dismissed in limine at
c
the initial stage if it does not disclose any cause of action. Cause of
action in questioning the validity of election must relate to the grounds
specified ins. 100 of the Act. If the allegations contained in the petition D
)-'
do not set out grounds of challenge as contemplated by s. 100 and if the
allegations do not conform to the requirement of ss. 81 and 83 the pleadings are liable to be struck off under Order VI Rule 16 of the Code of
Civil Procedure. If after striking out defective pleadings the Court finds
that no cause of action remains to be tried it would be duty bound to
reject the petition under Order VII Rule 11 of the Code. (382H, 386A-C] E
Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253; Bhagwati
Prasad v. Rajir Gandhi, [1986] 4 SCC 78; Udhav Singh v. Madhav Rao
Scindia, [1976] 2 SCR 246 and Charan Lal Sahu & Ors. v. Giani Zail
Singh & Anr., (1984] 2 SCR 6, referred to.
2.2 In the instant case, the appellant failed to plead complete
details of corrupt practices which could constitute a cause of action as
contemplated by s. 100 of the Act. He also failed to give the material
facts and other details of the alleged corrupt pradices. The High Court,
therefore, rightly exercised its power in rejecting the election petition
>--under Order VII Rule 11 of the Code. [401G, 403G-H]
3.1 Order VI Rule 16 of the Civil Procedure Code permits striking out of pleadings which are unnecessary, scandalous, frivolou•,
or vexatious or which may tend to prejudice, embarrass or delay a
F
G
fair trial at any stage of the proceedings. It does not admit of any
exception that the respondent must file written statement before the H
..
A
B
c
372
SUPREME COURT REPORTS
[1987) 3.S.C.R.
preliminary objections could be entertained. If, therefare, a preliminary objection is raised before commencement of the trial, the
court is duty bound to consider the same. It need not wait for the filing
of the written statement by the defendant and point out defects.
Instead it can proceed to hear the preliminary objection and strike
out the pleadings. [387BC, 3860, 383AB, CD)
3.2. The High Court, therefore, had jurisdiction in the instant
case to strike out pleadings at the preliminary stage even though no
written statement had been filed by the respondent. [382CD I
K.Kamaraja Nadar v. Kunju Thevar & Ors., [1959) SCR 583,
referred to. Union of India v. Surjit Singh Atwal, [1979) 2 SCR 1002,
distinguished. Vidya Charan Shukla v. G.P. Tiwari & Ors., AIR 1963
'.\IP 356 overruled.
4.1 The Court did not deprive the appellant of the opportunity to
amend the petition and to make good the deficiencies by supplying the
~
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-~
---4
D necessary particulars and details of the corrupt practices alleged in the
petition. He was free to file amendment application, but at no stage did
~
he express any desire to make any amendment application nor he made
E
any application to that effect before the High Court. It was open to him
to have made that application but he himself did not make any such
application. [387DE)
4.2 The High Court was under no legal obligation to direct the
appellant to amend pleadings or ta sua mata grant time for the same.
'.\loreover, the allegations of corrupt practice as required by Section 83
were not complete and did not furnish any cause of action. [387E]
F
5.1 The petition was drafted in a highly vague and general man·
ner. Various paragraphs of the petition presented disjointed averments
and it is difficult to make out as to what actually the petitioner intended
to plead. [401H)
-
5.2 The allegations contained in paragraphs 1 to 7 contain narra·
G
lion of facts as to when the election took place and the petitioner's desire ~· ··1' .:F
to file his nomination paper and the obstruction raised by the autho·
rities and the allegation that the police were shadowing the appellant do
not make out any ground under s. IOO of the Act. [388H)
5.3 The allegation in para 8 that food was given to the workers of
H
the respondent at some places assuming to be true does not make out a
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M.L. AGARWAL v. RAHV GANDHI
373
case of corrupt practice or any other ground of challenge under s. 100
of the Act. A corrupt practice as contemplated by s. 123( 6) con tempIates incurring or authorising expenditure beyond the prescribed limit.
The impugned allegation drn;s not contain any averment that the
respondent incurred or authorised expenditure beyond the prescribed
limit. [389B-D]
5.4 Paras 9 to 19 merely show that a number of vehicles were
plying with party flags of the respondent in the constituency on different dates which by itself do not constitute any corrupt practice. The
basic ingredients to make out a ground for challenging the election
under s. 100 of the Act in these paras were totally lacking. They,
therefore, disclosed no cause of action. [389E-G]
S.S The allegations in paras 20 and 21 that the mother of the
returned candidate, who was the Prime Minister, had toured the constituency alongwith him and in her speeches had appealed to the voters to
vote for him do not constitute undue influence or any other corrupt
practice. It is always open to a candidate or his supporters to appeal to
the electors to vote for a particular candidate for the development and
progress of the area. This would he a legitimate appeal. [389H-390A]
5.6 The allegations in paras 22 to 26 of the petition relate to the
relationship of the appellant with his agent. These do not make out any
ground under s. 100 of the Act. [390BC]
5. 7 The statement in para 27 that the appellant as well as his
election agent were being followed by police does not refer to any violation of law or rule or commission of any electoral offence by the returned candidate or his workers with his consent. [390C]
A
B
c
D
E
5.8 The allegation in para 28 that on the polling day a lady went
F
to the polling booth alongwith a voter where he affixed stamp on ballot
paper and returned with her does not amount to any corrupt practice
with consent of the returned candidate unless it could be shown that it
materially affected the result of the election. [3900]
;j~.
5.9 The allegation in para 29 that on the polling day drinking G
,,
water and batashas were being distributed to the voters at the polling
··
station does not show that it was being done with the consent of the
respondent or that he spent money over it or that the said action
influenced the voters or that it materially affected the result of the
election. In the absence of such allegations it disclosed no cause of
action. [390F]
·
H
l
-
374
SUPREME COURT REPORTS
(1987] 3.S.C.R.
A
5.10 The allegations in paras 31 to 35 that workers of the respon-
~
dent helped voters to cast their votes in favour of the respondent, do not
amount to any corrupt practice unless there was further allegation that
it materially affected the result of the election. [390G I
5.11 The averments made in paras 37 and 38 contain narration of
B
facts which have no bearing on any corrupt practice. [391A]
c
5.12 The allegations in paras 39 to 49 that neither the appellant
nor his election agent had appointed any counting agents but a number
of persons had acted as his counting agents in an unauthorised manner
and that complaints made by him were not considered by the Returning
Officer, even if assumed to be tr•ie do not make out any case of commission of corrupt practice. [391B]
The High Court, was, therefore, justified in striking out all these
paragraphs.
D
6.1 In order to constitute a corrupt practice as contemplated by
ss. 77 and 123(6) it is necessary to plead requisite facts showing authori_.
sation or undertaking of reimbursement by the candidate or his election
1
agent. A mere vague and general statement that the candidate and his
workers with his consent spent money in election in excess rif the
permissible ceiling would not be sufficient to constitute corrupt
E
practice. [392G-393A]
-
Rananjaya Singh v. Baijnath Singh, (1955] 1 SCR 671; Smt.
A......;
Indira Gandhi v. Raj Narain, (1976] 2 SCR 347 and Kunwar Lal Gupta
v. A.N Chawla, (1975] 2 SCR 259, referred to.
F
6.2 Any voluntary expense incurred by a political party, well-
"ishers, sympathisers or association of persons does not fall within the
mischief of s. 123(6), instead only that expenditure which is incurred by
the candidate himself or authorised by him is material for the purpose
ofs. 77. [392B]
G
Dr. P. Nalla Thampy Terah v. Union of India & Ors., [1985[
J
,
Supp. SCC 189, referred to.
~
6.3 The allegations contained in various sub-paras of para 50
merely allege that a number of vehicles were plying with the flags of the
party to which the returned candidate belonged and food was served in
H
connection with the election meetings, distribution of badges and
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M.L. AGARWAL v. RAJIV GANDHI
375
leaflets. There is no allegation . that the returned candidate incurred
or authorised incurring of expenditure for the aforesaid purposes.
Unless the allegations are specific that the candidate or his election
agent authorised the expenses before the money was actually spent and
that the candidate or his election agent reimbursed or undertook
to reimburse the same the· necessary ingredient of corrupt practice
would not be complete and it would provide no cause of action to
plead corrupt practice. The High Court was justified in striking out the
same. [393G-394A]
7 .1 If some developmental activity was carried on in the constituency and If it was completed during the election period it could not
amountto anyaift or promise to the voters. [394G]
7 .2 The •llegatlon in para S3(1)(A) does not disclose any material
A
B
c
fact or particular regarding the alleged corrupt practice of making gift
which may amount to bribery within the meaning of s. 123(1)(A). It
merely states that Amethi railway station was being constructed and
during the electiqn its work was speeded up which persuaded the voters
D
to cast their votes in favour of the returned candidate. There ls no
allegation thltt Ille returned candidate or his workers with his consent
made any gift, offer or promise to any elector to vote or refrain from
voting at an election. [394E~]
8.1 A candidate, his workers and supporters have every right
E
under the law to canvass for the success of a particular candidate saying
that if elected he would work for the development of the constituency.
Such a promise does not in any way interfere with the free exercise of
electoral right of the electors. [39SE]
/
8.2 The allqatlons in paras 53(1)(B) and (C) that the returned F
candidate, his mother and their wor.kers with their consent made promise through newspapers, pamphlets and speeches that voters should
cast their votes In favour of the respondent for the sake of progress
and development of the constituency, merely amounts to a representation being nrade by the party leader and the returned candidate and his
~workers. Such a statement of promise is a legitimate one and it does not G
I fall within the definition of bribery and undue influence under
s. 123(1)(A) ors. 123(2). [39SB, D}
•
8.3 Declaration of public policy or a promise of public action or
promise to develop the constituency in general do not interfere with free
exercise of electoral rights as the same do not constitute bribery or H
undue influence. [3968] -
..
376
SUPREME COURT REPORTS
(1987] 3.S.C.R.
A
Shiv Kirpal Singh v. V. V. Giri, (1971] 2 SCR 197 and H. V.
Karnath v. Ch. Nitiraj Singh, [1969] 3 SCR 813, referred to.
9.1 Hiring or procuring of a vehicle by a candidate or his agent or
by any other person with his consent is the first essential ingredient of
the corrupt practice under s. 123(5), the second such ingredient is that
B the hiring or procuring of the vehicle must be for conveyance of the
voters to and from the polling station, and the third that conveyance of
electors is free from any charge. If any of the three ingredients is not
pleaded to make out a case of corrupt practice under s. 123(5) the
charge must fail. [39'7E, 399C]
9.2 The allegations contained in paras 30 and 53(1)(D) conspicuC
ously do not contain any pleading regarding hiring and procuring of the
vehicles by the returned candidate or any of bis workers with his
-f
consent for conveyance of the voters to and from polling station free
of cost. No particulars of any kind have been specified. The paras,
therefore, do not make out .my charge of corrupt practice as contemD
plated by s. 123(5) and the High Court was justified in striking out the
E
same. [399G-400A]
"(
Joshbhai Chunnibhai Patel v. Anwar Bel( A. Mirza, [1969] 2 SCR
97; Ch. Razik Ram v. Ch. J.S. Chauhan & Ors., AIR 1975 SC 667;
Balwant Singh v. Lakshmi Narain, (1960] 3 SCR 91; Dadasaheb Dattatraya Pawar & Ors. v. Pandurang Raoji Jagtap & Ors., (1978] 2 SCR
524; Dharmesh Prasad Verma v. Faiyazal Azam, (1985] I SCR 11;
Rajendra Singh Yadav v. Chandra Sen & Ors., AIR 1979 SC 882 and
Ba/wan Singh v. Prakash Chand & Ors., AIR 1976 SC 1187, referred
to.
F
10 .1 In order to constitute a corrupt practice under s. 123(7), it
is essential to clothe the petition with a cause of action which would call
for an answer from the returned candidate and it should, therefore,
plead mode of assistance, measure of assistance and all facts pertaining
to the assistance. The pleading should further indicate the kind or form
of assistance obtained and in what manner the assistance was obtained
G
or procured or attempted to be procured by the candidate for promo!- ~
ing the prospect of his election. The petitioner most state with exactness
the time of assistance, the manner of assistance and the persons from
whom assistance was obtained or procured by the candidate. [400DE]
10.2 The allegations in sub-paras 1, 2 and 3 of para 53(1)(E) that
H
though the appellant bad not appointed any counting agent but still
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M.L. AGARWAL v. RAJIV GANDHI
377
certain persons acted as his counting agents and the returning officer A
did not hold any inquiry into his complaint, in sub·para 4 that there
was fear psychosis and it looked as if the police and other government
officials wanted to help the returned candidate, in sub-para 5 of certain
persons helping the voters to cast their votes on the polling day and that
S!!me persons cast votes 100 to 200 times and their signatures were not
obtained do not make out any charge of corrupt practice within the B
provisionsofs.123(7). [400FG]
11. The allegations in para 53(2) that the presiding officers did not
perform their duties in accordance with law inasmuch as they failed in
their duty to remove the posters and other propaganda material from
the polling booth and that the election symbol of the returned candidate c
was displayed within 100 metres of the polling booth in violation of
the rules do not make out any charge of corrupt practice. If at all,
it could be a ground under s. lOO(l)(d)(!v) for setting aside election
on the ground of its being materially affected but. no such plea was
raised. [401EF]
D
12. The allegation in para 52 that the returned candidate had
polled cent per cent votes in his favour in certain villages of the
constituency do not make out any corrupt practice or any ground
of challenge under s. 100 and it was rightly struck off by the High
Court. [394B]
E
13. Order VI Rule 17 of the Code of Civil Procedure permits
amendment of an election petition but the same is subject to the provi·
sions of the Act. Section 81 prescribes a period of 45 days from the date
of the election for presenting election petition calling in question the
election of the returned candidate. After the expiry of. that period no
election petition is maintainable and the High Court or this Court has F
no jurisdiction to extend the period of limitation. An order of amend•
ment permitting a new ground to be raised beyond the time specified in
s. 81 would amount to contravention of these provisions and is beyond
the ambit of s. 87 of the Act. A new ground cannot, thus, be raised or
inserted in an election petition by way of amendment after the expiry of
the period of limitation. [ 402CD]
G
In the instant case, the election petition was presented to the
Registrar of the High Court on the last day of the limitation. The
amendments claimed by him are not in the nature of supplying particulars instead those seek to raise new grounds 'of challenge. Various paras
of the election petition whieh are sought to be amended do not disclose H
• :WWW
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378
SUPREME COURT REPORTS
[1987] 3.S.C.R.
any cause of action. Therefore, it is not permissible to allow amendment
A after expiry of the period oflimitation. [402A, El
14.1 Court should not undertake to decide an issue unless it is a
living issue between the parties, for if an issue is purely academic in that
its decision one way or the other would have no impact on the position of
B the parties, it would be waste of public time to engage itself in deciding
it. [380D]
Sun Life Assurance Company of Canada v. Jervis, [1944] AC 111,
referred to.
c
14.2 Election is the essence of democratic system and purity of
elections must be maintained to ensure fair election. Election petition is
a necessary process to hold inquiry into corrupt practice to maintain
the purity of election. But there should be some time limit for • 1"'ng
this inquiry. [381E]
D
14.3 Parliament should consider the desirability of amending the
election law to prescribe time limit for inquiry into the allegations of
corrupt practice or to devise means to ensure that valualtle time el this
Conrt is not consumed in election matters which by afllu el thm are
reduced to mere academic interest. [381D]
E
15. A large number of independent candidates contest the
F
election for the mere sake of contesting, with a view to make out
grounds for challenging the election. They poll only paltry number of
votes. Parliament should devise ways and means to meet the onslaught
of such independent candidates who are not quite serious about their
business. [402G, 403B, G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 430
of 1982.
From the Judgment and Order dated 12. 10.1981 of the
Allahabad High Court in E.P. No. 1of1981.
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Appeallent in person
~.
Dr. Y.S. Chitale, N. Nettar, G.S. Narayan Rao and R.B. Datar
for the Respondent.
The Judgment of the.Court was delivered by
H
SINGH, J. This appeal under Section 116-A of the Representa-
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M.L. AGARWAL v. RAJIV GANDHI (SINGH, J.)
379
tion of the People Act 1951 is directed against the order of the Higl. A
Court of Allahabad (Lucknow Bench) dated 12.10.1981 rejecting the
election petition filed by the appellant questioning the election of the
/ respondent as member of the Lok Sabha.
A bye election was held on June 14, 1981 to fill up the vacancy to
>-.
the Lok Sabha caused by the death of Sanjay Gandhi in the 25th
B
Amethi Constituency in District Sultanpur in the State of Uttar
~
Pradesh. The appellant, the respondent and 13 other candidates contested the election. On 15th June 1981 Rajiv Gandhi was declared
elected having polled 258884 votes while the appellant polled 2728
votes only. The appellant filed an election petition under Section 80 of
the Representation of the People Act 1951 (hereinafter referred to as the c
+
Act) questioning the validity of the election of the respondent on a numher of grounds, including the allegations of corrupt practice of undue influence, hiring and procuring of vehicles for carrying voters and obtaining
the assistance of Government servants and incurring expenses at the
election in excess of the permissible limit. The High Court issued
)-
notice to the respondent who appeared before it and made an appliD
cation under Order VI Rule 16 of the Code of Civil Procedure for
striking out the pleadings contained therein as the same were vague,
general, unnecessary, frivolous and vexatious which did not disclose
any cause of action. Respondent further prayed that the election petition be rejected under Order VII Rule 11 of the Civil Procedure Code
read with Section 87 of the Act.
E
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A learned Single Judge of the High Court before whom the preliminary objections were raised caused service of the copy of the
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objections on the appellant who was appearing in person and granted
time to him to submit his reply. The appellant, however, did not submit any reply to the preliminary objections and in spite of date being
F
fixed for hearing arguments in his presence he did not appear before
the Court on the date fixed for arguments. The learned Judge after
hearing the arguments advanced on behalf of the respondent passed an
order on 12th October 1981 holding that the various paragraphs con-
}
tained in the petition were vague and the same did not contain suffi-
~
cient averments to constitute any corrupt practice and the various
G
paragraphs of the petition were unnecessary, frivolous and vexatious
within the meaning of Order VI Rule 16 of the Code of Civil Procedure. The learned Judge struck off paragraphs 2 to 53, 55 to 57 and
rejected the petition under Order VII Rule 11 read with Section 87 of
the Act on the ground that the election petition did not disclose any
cause of action. The appellant has preferred this appeal against the
H
said order.
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380
SUPREME COURT REPORTS
[1987] 3.S.C.R.
A
The election under challenge relates to 1981, its term expired in
1984 on the dissolution of the Lok Sabha, thereafter another general
election was held in December, 1984 and the respondent was again
elected from 25th Amethi Constituency to the Lok Sabha. The validity
of the election held in 1984 was questioned by means of two separate
election petitions and both the petitions have been dismissed. The
B validity of respondent's election has been upheld in Azhar Hussain v.
Rajiv Gandhi, AIR 1986 SC 1253 and Bhagwati Prasad v. Rajiv
Gandhi, [ 1986] 4 SCC 78. Since the impugned election relates to the
Lok Sabha which was dissolved in 1984 the respondent's election cannot be set aside in the present proceedings even if the election petition
is ultimately allowed on triafas the respondent is a continuing member
of the Lok Sabha not on the basis of the impugned election held in
C 1981 but on the basis of his subsequent election in 1984. Even if we
allow the appeal and remit the ca'e to the High Court the respondent's
election cannot be set aside after trial of the election petition as the
relief for setting aside the election has been rendered infructuous by
lapse of time. In this view grounds raised in the petition for setting
D aside the election of the respondent have been rendered academic.
Court should not undertake to decide an issue unless it is a living issue
between the parties. If an issue is purely academic in that its decision
one way or the other would have no impact on the position of the
parties, it would be waste of public time to engage itself in deciding it.
Lord Viscount Simon in his speech in the House of Lords in Sun Life
E Assurance Company of Canada v. Jervis, [1944] AC 111 observed; "I
do not think that it would be a proper exercise of the Authority which
this House possesses to hear appeals if it occupies time in this case in
deciding an academic question, the answer to which cannot affect the
respondent in any way. It is an essential quality of an appeal fit to be
disposed of by t.his House that there should exist between the parties
F a matter in actual controversy which the House undertakes to
decide as a living issue." These observations are relevant in exercising
the appellate jurisdiction of this Court.
The main controversy raised in the present appeal regarding setting aside of the respondent's election has become stale and academic,
G but precious time of the apex Court was consumed in hearing the '1
apJ?eal at length on account of the present state of law. Section 98 read
with Section 99 indicates that once the machinery of the Act is moved
by means of an election petition, charges of corrupt practice, if any,
raised against the returned candidate must be investigated. On conclusion of the trial if the Court finds that a returned candidate or any of
H his election agent is guilty of commission of corrupt practice he or his
-
~.
M.L. AGARWAL v. RAJIV GANDHI [SINGH, J.]
381
) •.
election agent, as the case may be, would be guilty of electoral offence
incurring disqualification from contesting any subsequent election for
A
a period of six years. In this state of legal position we had to devote
considerable time to the present proceedings as the appellant insisted
that even though six years period has elapsed and subsequent election
has been· held nonetheless if the allegations made by him make out a
)...
case of corrupt practice the proceedings should be remanded to the
B
High Court for trial and if after the trial the Court finds him guilty of
~
corrupt practice the respondent should be disqualified. If we were to
remand the proceedings to the High Court for trial for holding inquiry
into the allegations of corrupt practice, the trial itself may take couple
-
of years, we doubt if any genuine and bona fide evidence could be
produced by the parties before the Court, in fact, during the course of c
hearing the appellant himself stated before us more than once, that it
t--
would now be very difficult for him to produce evidence to sub~
stantiate the allegations of corrupt practice but nonetheless he insisted
for fhe appeal being heard on merits. Though the matter is stale and
academic yet having regard to the present state of law, we had to hear
the appeal at l.ength.
D
)"
Before we consider the submissions on merit, we would like to
say that Parliament should consider the desirability of amending the
law to prescribe time limit for inquiry into the allegations of corrupt
practice or to devise means to ensure that valuable time of this Court is
not consumed .in election matters which by efflux of time are reduced E
--.4(
to mere academic interest. Election is the essence of democratic
system and purity of elections must be maintained to ensure fair election. Election petition is a necessary process to hold inquiry into cor-
- ~
rupt practice to maintain the purity of election. But there should be
some time limit for holding this inquiry. Is it in public interest to keep
sword of Damocles hanging on the head of the returned candidate for F
an indefinite period of time as a result of which he cannot perform his
public duties and discharge his obligations to his constituents? We do
not mean to say that the returned candidate should be permitted to
~
delay proceedings and to plead later on the plea of limitation. Ways
and means should be found to strike a balance in ascertaining the
}-
purity of election and at the same time in preventing waste of public G
time and mone~' and keeping the sw.ord of Damocles hanging on the
head of returned candidate for an indefinite period of time.
'!'he appellant appeared in person and argued the case vehemently for a number of days. He made three submissions: (i) The High
Court had no jurisdiction to entertain preliminary objections under H
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382
SUPREME COURT REPORTS
[1987] 3.S.C.R.
Order VI Rule 16 or to reject the election petition under Order VII
A Rule 11 of the Code of Civil Procedure before the respondent had filed
his written statement to the petition. In rejecting the petition under
Order VII Rule 11 the High Court deprived the appellant opportunity
of amending the petition by supplying material facts and particulars.
(ii) Allegations contained in various paragraphs of the election petiB tion constituted corrupt practice which disclosed cause of action within
the meaning of Section 100 of the Act. 1be High Court committed
error in holding that the petition was defective on the premise that it
did not disclose any triable issue. (iii) The election petition disclosed
primary facts regarding corrupt practice and if there was absence of
any particulars or details the High Court should have afforded
C opportunity to the appellant to amend the petition.
The first question which falls for our determination is whether
the High Court had jurisdiction to strike out pleadings under Order VI
Rule 16 of the Code of Civil Procedure and to reject the election
petition under Order VII Rule 11 of the Code at the preliminary stage
D even though no written ~tatement had been filed by the respondent.
Section 80 provides that no election is to be called in question except
by an election petition presented in accordance with the provisions of
Part VI of the Act before the High Court. Section 81 provides that an
election petition may be presented on one or more of the grounds
specified in Section 100 by an elector or by a candidate questioning
E the election of a returned candidate. Section 83 provides that an election petition shall contain a concise statement of material facts on
which the petitioner relies and he shall set forth full particulars of any
corrupt practice that he may allege including full statement 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. SecF
tion 86 confers power on the High Court to dismiss an election petition
which does not comply with the provisions of Sections 81 and 82 or
Section 117. Section 87 deals with the procedure to be followed in the
trial of the election petition and it Jays down that subject to the provisions of the Act and of aay rules made thereunder, every election
petition shall be tried by the High Court as nearly as may be in accordG ance with the procedure applicable to the trial of suits under the Code
~
of Civil Procedure, 1908. Since provisions of Civil Procedure Code
apply to the trial of an election petition, Order VI Rule 16 and Order
VII Rule 11 are applicable to the proceedings relating to the trial of an
election petition subject to the provisions of the Act. On a combined
reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that
H those paragraphs of a petition which do not disclose any cause of
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r
M.L. AGARWAL v. RAJJV GANDHI [SINGH, J.]
383
>-
action, are liable to be struck off under Order VI Rule 16, as the Court
is empowered at any stage of the proceedings to strike out or delete A
pleading which is unnecessary, scandalous, frivolous or vexatious or
which may tend to prejudice, embarrass or delay the fair trial of the
petition or suit. It is the duty of the Court to examine the plaint and it
need not wait till the defendant files written statement and points out
'
the defects. If the court on examination of the plaint or the election B
>-
petition finds that it does not disclose any cause of action it would be
...
justified in striking out the pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be .before the filing of the written statement by
-
the respondent or commencement of the trial. If the Court is satisfied
that the election petition does not make out any cause of.action and c
that the trial would prejudice, embarrass and delay the proceedings,
+-
the court need not wait for the filing of the written statement instead it
can proceed to hear the preliminary objections and strike out the
pleadings. If after striking out the pleadings the court finds that no
triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11.
D
y
In K. Kamaraja Nadar v. Kunju Thevar and Ors., (1959] SCR
583 the Election Tribunal and the High Court both refused to consider preliminary objections raised by the returned candidate at the
initial stage on the ground that the same would be considered at the
trial of the election petition. This Court set aside the order and E
~
.. 4(__
directed that the preliminary objection should be entertained and a
decision reached thereupon before further proceedings were taken in
the election petition. Bhagwati, J. speaking for the Court observed
-.. ~
thus:
"We are of opinion that both the Election Tribunal and the F
High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision
reached thereupon, further proceedings taken in the Eleclion Petition would mean a full fledged trial involving
examination of a large number of witnesses on behalf of the
~
>-
2nd respondent in support of the numerous allegations of G
corrupt practices attributed by him to the appellant, his
agents or others working on his behalf; examination of a
large number of witnesses by or on behalf of the appellant
controverting the allegations made against him; examination of witnesses in support of the recrimination submitted
by the appellant ~gainst the 2nd respondent; and large H
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384
A
B
SUPREME COURT REPORTS
[1987] 3.S.C.R.
number of visits by the appellant from distant places like
Delhi and Bombay to Ranchi resulting in not only heavy
expenses and loss of time and diversion of the appellant
from his public duty in the various fields of activity including those in the House of the People, It would mean
unnecessary harassment and expenses for the appellant
which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the
Election Tribunal."
In Udhav Singh v, Madhav Rao Scindia, (1976] 2 SCR 246 this
Court held that failure to plead even a single material fact leads to an
incomplete cause of action and incomplete allegations of such a charge
C
are liable to be struck off under Order VI Rule 16, Code of Civil
Procedure. If the petition is based solely on those allegations which
suffer from lack of material facts, the petition is lialJle to be summarily
rejected for want of a cause of action.