# ISHWARDAS ROHANI v. ALOK MISHRA & ORS

- **Citation:** [2012] 13 S.C.R. 285
- **Court:** Supreme Court of India
- **Decided:** 2012-05-03
- **Case number:** Civil Appeal No. 4189 of 2012
- **Bench:** Altamas Kabir, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ishwardas-rohani-v-alok-mishra-ors-28138
- **Pages:** 47

## Headnote

Election Laws - Election Petition - Pleadings - Allegation
A
B
in election petition that appellant (the returned candidate) had
indulged in corrupt practices falling uls.123 of the 1951 Act -
C
Appellant filed application challenging the election petition as
being defective on various grounds viz. improper cause of
action, vague allegations and non-disclosure of material facts
and particulars, and thus liable to be rejected - High Court
passed directions permitting respondent no.1-election D
petitioner to cure deficiencies in the election petition and to
suitably amend the pleadings alongwith proper verification and
affidavit - Directions challenged before Supreme Court - Held
[per Kabir, J.] High Court did not commit any error in directing
the Election Petitioner to cure defects in the Election Petition
E
- Though the provisions of the 1951 Act have to be strictly
construed, but that does not mean that any defect in the
Election Petition cannot be allowed to be cured in the public
interest - If after an opportunity is given, still no steps are taken
by the Election Petitioner to cure the qefects which are
F
noticed, then the rigours of the procedure indicated by the
1951 Act, would come into effect with full vigour - Held [per
Chelameswar, J. (dissenting)], an election petition is required
to contain all the material facts sufficient to constitute the
cause of action for setting aside the election of the returned
candidate - Though failure to give 'material particulars' has
G
not been held to be fatal, the failure to give 'material facts' has
always been held to be fatal to the election petition - Election
petition on hand did not state material facts constituting the
various corrupt practices mentioned in the election petition -
285
H
286
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A It was incapable of being read as disclosing any cause of
action on the basis of any known cannon of interpretation of
documents - Election petition thus not maintainable and liable
to be dismissed -· In view of difference of opinion, matter
referred to larger .Bench -Representation of the People Act,
B
1951 - s.123(1)(A) and (8), (2), (6) and (7).
Respondent no.1 filed Election Petition challenging
the election of appellant- the returned candidate, on the
ground of corrupt practice, as contemplated in SubC Sections (1 )(A) and (B), (2), (6) and (7) of Section 123 of
the Representation of the People Act, 1951. In the
pending Election Petition, the appellant filed an I.A. under
Order VII Rule 11 read with Order VI Rule 16 of CPC,
praying that the Election Petition filed by Respondent
No.1 be rejected on ground of various deficiencies such
D as improper cause of action, vague allegations and nondisclosure of material facts and particulars. The High
Court held that although the allegations of corrupt
practice had not been properly drafted, the Election
petition could nc>t be rejected on the said ground and
E directed Respondent no.1 to cure defects in the election
petition- in light c>f the objections raised, and amend the
pleadings suitablly. The High Court further directed that
after amending 1the pleadings, respondent no.1 would
also verify the s;ame by furnishing an affidavit under
F Order VI, Rule 15(4) CPC and further verify the pleadings
relating to the corrupt practice by filing a proper affidavit
in the prescribed Form No.25, as prescribed under Rule
94-A and appendi~d to the Conduct of the Election Rules,
1961. The direc:tions given by the High Court was
G challenged in thE~ instant appeal.
HELD:
Per Kabir. J.
H
1.1. One line of decisions rendered by this Court
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
287
suggests that since an Election Petition has serious A
consequences under Section SA of the Representation
of the People Act, 1951, the provisions of the Act have to
be strictly construed and, particularly, in cases where
corruption is alleged, any omission in the pleadings to
mention such corrupt practice would render the Election
B
Petition

## Text

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[2012] 13 S.C.R. 285
ISHWARDAS ROHAN!
V.
ALOK MISHRA & ORS.
(Civil Appeal No. 4189 of 2012)
MAY 3, 2012
[ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]
Election Laws - Election Petition - Pleadings - Allegation
A
B
in election petition that appellant (the returned candidate) had
indulged in corrupt practices falling uls.123 of the 1951 Act -
C
Appellant filed application challenging the election petition as
being defective on various grounds viz. improper cause of
action, vague allegations and non-disclosure of material facts
and particulars, and thus liable to be rejected - High Court
passed directions permitting respondent no.1-election D
petitioner to cure deficiencies in the election petition and to
suitably amend the pleadings alongwith proper verification and
affidavit - Directions challenged before Supreme Court - Held
[per Kabir, J.] High Court did not commit any error in directing
the Election Petitioner to cure defects in the Election Petition
E
- Though the provisions of the 1951 Act have to be strictly
construed, but that does not mean that any defect in the
Election Petition cannot be allowed to be cured in the public
interest - If after an opportunity is given, still no steps are taken
by the Election Petitioner to cure the qefects which are
F
noticed, then the rigours of the procedure indicated by the
1951 Act, would come into effect with full vigour - Held [per
Chelameswar, J. (dissenting)], an election petition is required
to contain all the material facts sufficient to constitute the
cause of action for setting aside the election of the returned
candidate - Though failure to give 'material particulars' has
G
not been held to be fatal, the failure to give 'material facts' has
always been held to be fatal to the election petition - Election
petition on hand did not state material facts constituting the
various corrupt practices mentioned in the election petition -
285
H
286
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A It was incapable of being read as disclosing any cause of
action on the basis of any known cannon of interpretation of
documents - Election petition thus not maintainable and liable
to be dismissed -· In view of difference of opinion, matter
referred to larger .Bench -Representation of the People Act,
B
1951 - s.123(1)(A) and (8), (2), (6) and (7).
Respondent no.1 filed Election Petition challenging
the election of appellant- the returned candidate, on the
ground of corrupt practice, as contemplated in SubC Sections (1 )(A) and (B), (2), (6) and (7) of Section 123 of
the Representation of the People Act, 1951. In the
pending Election Petition, the appellant filed an I.A. under
Order VII Rule 11 read with Order VI Rule 16 of CPC,
praying that the Election Petition filed by Respondent
No.1 be rejected on ground of various deficiencies such
D as improper cause of action, vague allegations and nondisclosure of material facts and particulars. The High
Court held that although the allegations of corrupt
practice had not been properly drafted, the Election
petition could nc>t be rejected on the said ground and
E directed Respondent no.1 to cure defects in the election
petition- in light c>f the objections raised, and amend the
pleadings suitablly. The High Court further directed that
after amending 1the pleadings, respondent no.1 would
also verify the s;ame by furnishing an affidavit under
F Order VI, Rule 15(4) CPC and further verify the pleadings
relating to the corrupt practice by filing a proper affidavit
in the prescribed Form No.25, as prescribed under Rule
94-A and appendi~d to the Conduct of the Election Rules,
1961. The direc:tions given by the High Court was
G challenged in thE~ instant appeal.
HELD:
Per Kabir. J.
H
1.1. One line of decisions rendered by this Court
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
287
suggests that since an Election Petition has serious A
consequences under Section SA of the Representation
of the People Act, 1951, the provisions of the Act have to
be strictly construed and, particularly, in cases where
corruption is alleged, any omission in the pleadings to
mention such corrupt practice would render the Election
B
Petition not maintainable. On the other hand, another line
of decisions suggests that since the issue involved in an
Election Petition alleging corrupt practice, is of great
public interest, an Election Petition should not be rejected
at the threshold, but an opportunity should be given to C
the Election Petitioner to cure the defects which are
curable. It was contended by the counsel for the appellant
that in absence of a cause of action or incomplete cause
of action for the Election Petition on account of the
verification thereto not being in conformity with the 0
provisions of Order VI Rule 15 of the C.P.C. the Election
Petition was liable to be dismissed. Such contention is
not acceptable in the light of the decisions in Sardar
Harcharan Singh Brar's case and also in F.A. Sapa's
case, despite the fact that in F.A. Sapa's case it was
indicated that if the affidavit of schedule or annexure
E
forms an integral part of the Election Petition itself, strict
compliance would be insisted upon. [Para 21] [303-F-H;
304-A-C]
1.2. In F.A. Sapa's case, it had been indicated that a
F
charge of corrupt practice has a two dimensional effect,
namely, its impact on the returned candidate has to be
viewed from the point of view of the candidate's future
political and public life and from the point of view of the
electorate to ensure the purity of the election process.
G
Accordingly, there has to be a balance in which the
provisions of Section 81 (3) of the 1951 Act are duly
complied with to safeguard the interest, both of the
individual candidate, as well as of the public. In this case,
while accepting the case made out by the appellant H
288
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A regarding the deficiencies in the Election Petition, the
High Court did not commit any error in directing the
Election Petitioner to cure the defects in the Election
Petition, which had been brought out during the hearing
of the Election Petition. Though the provisions have to
B be strictly construed, but that does not mean that any
defect in the Election Petition cannot be allowed to be
cured in the public interest. If after an opportunity is
given, still no steps are taken by the Election Petitioner
to cure the defects which are noticed, then the rigours
C of the procedure indicated by the 1951 Act, come into
effect with full vigour .. [Paras 22, 23) [304-D-F, H; 305-AB]
1.3. There is no reason to interfere with the impugned
order of the High Court and the appeal is, accordingly, .
D dismissed. [Para 24] [305-B-C]
Sardar Harcharan Singh Brar v. Sukh Darshan Singh
[AIR 2005 SC 22) and F.A. Sapa & Ors. v. Singora & Ors.
[(1991) 3 sec 375) - relied on.
Surinder Singh v. Hardial Singh [(1985) 1 SCC 91);
Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [(1987)
Supp. SCC 93); Anil Vasudev Salgaonkar v. Naresh Kushali
Shigaonkar [(2009) 9 SCC 310); R.P. Moidutty v. P. T. Kunju
Mohammad [(2000) 1 SCC 481); V. Narayanaswamy v. C.P.
F Thirunavukkarasu [(2000) 2 SCC 294) and Raj Narain v. Smt.
G
Indira Nehru Gandhi [(1972) 3 SCC 850) - referred to.
Per Chelameswar, J. (dissenting)
1.1. The election petition is not only a bad piece of
drafting, but also it is difficult to state with precision as
to what exactly is the substance of the complaint in the
election petition. The absurdity of the election petition can
only be understood by reading it, but cannot be
H explained. Respondent No.1 invited an adjudication that
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
289
corrupt practices falling under Section 123(2), (6), (7) and
A
123(A) and (8) of the R.P. Act, have been committed.
There are no Sections numbered 123(A), (8) in the
R.P .Act, 1951. The High Court, however, generously
construed such reference to Sections 123(A) and (8)
occurring in the election petition as references to Section
B
123(1)(A) and (B). (Paras 4, 5) [307-H; 308-A, F]
1.2. Section 100 of the R.P. Act, 1951, provides the
grounds on which an election could be declared void.
The election of a returned candidate can be declared
void, if the High Court is satisfied; a) that any corrupt C
practice has been committed either by the returned
candidate or his election agent or any other person with
the consent of either the candidate or his election agent;
and b) that any corrupt practice has been committed by
any agent other than the election agent. In the case of the D
satisfaction of the High Court of the 1st of the
abovementioned two contingencies, the High Court can
straightaway declare the election of the returned
candidate to be void. Whereas in the 2nd of the
abovementioned contingencies, the High Court must also E
be satisfied that such commission of the corrupt practice
has materially affected the result of the election because
the corrupt practices falling under the later category are
committed without the consent of the returned candidate
or his election agent. [Para 8) (310-C-D, E; 311-C-E]
F
1.3. In the instant case, the returned candidate filed
his nomination on 03-11-2008. To be guilty of committing
a corrupt practice, the returned candidate or his election
agent or some other person duly authorised either by the G
returned candidate or his election agent must have
committed some act or omission contemplated under one
of the clauses under Section 123 of the R.P. Act, after 0311-2008, but before completion of the election process.
Para 1 of the election petition narrates the incidents that H
290
SUPREME COURT REPORTS
[2012] 13 $.C.R.
A are alleged to have oc:curred from 30-10-2008 to 02-11·
2008. The returned candidate cannot be legally accused
to be guilty of any acti1iity falling within the scope of any
one of the corrupt practices enumerated under the
sections of the R.P. Act, 1951, as, on 02-11-2008, the
B returned candidate had not yet filed his nomination. The
allegations found in para 3 of the election petition are too
omnibus. The alleged irregularities in the preparation of
the voters list can never be the subject matter of an
election petition. The objection regarding employment of
c Electronic Voting Mac:hines are vague with which the
returned candidate is no way concerned. The allegations
in paras 5 and 6 pertaining to distribution of cash,
cheques, clothing material and school bags to children,
even if assumed to be true and constituting some corrupt
o practice, pertain to a period prior to the filing of the
nomination, i.e., 03-11-2008, by the returned candidate.
Para 7 repeats the allegations contained in para 1 of the
election petition while Para 8 contains vague allegations
regarding erection ot' "welcome gates" without the
E permission of the Distr~ct Election Officer. [Paras 14, 17,
18, 19, 21, 22) [315-A, B-C; 316-B; 318-C-D-E-F; 319-D-E;
320-A, B-D; 321-D-E]
1.4. If a returned candidate is asked to face trial of an
election petition, such as the one, which is the subject
F
matter of the instant matter, it would be an absolute
travesty of justice and opposed to all the settled
principles of law regarding the election disputes. [Para
24] [322-E]
·G
1.5. An election petition is required to contain all the
material facts, which, either if proved or went
uncontroverted, would be sufficient to constitute the
cause of action for se!tting aside the ~lection of the
returned candidate on one or some of the grounds
H specified under Section 100 of the R.P. Act. There is an
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
291
absolute necessity of mentioning all the material facts in
A
an election petition. Though the failure to give the
'material particulars' has not been held to be fatal, the
failure to give 'material facts' has always been held to be
fatal to the election petition. [Paras 25, 26] [323-C; 325-8,
C-D]
B
1.6. The election petition on hand hopelessly lacks
in stating the material facts constituting the various
corrupt practices mentioned in the election petition to
enable the declarations sought by the election petitioner.
C
The conclusion recorded by the High Court that "it is true
that the allegations suffer from lack of certain material
particulars particularly as to the consent of the returned
candidate or his election agent" is wholly erroneous in
law. Consent by the candidate or his election agent is an
essential material fact, which is required to be pleaded
D
and proved when the allegation is that somebody other
than the candidate or his election agent committed a
corrupt practice. The election petition on hand is
incapable of being read as disclosing any cause of action
on the basis of any known cannon of interpretation of E
documents - whether a rule of reasonable construction
or any other construction. In view of the above
conclusion, there is no need to examine the other
submissions regarding the legal fact of the non-filing of
an affidavit in Form No.25 and absence of proper
F
verification of the pleadings and annexures. [Para 30]
[330-F-H; 331-A-B]
1. 7. The returned candidate placed a photocopy of
an application seeking the amendment of the election G
petition pursuant to the directions of the High Court. The
same appears to have been presented on 02-05-2011. In
view of the fact that the results of the election in question
·were declared on 08-12-2008, the application was filed
beyond the period of limitation prescribed under the R.P.
Act, to challenge the election. Since the election petition,
H
292
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A as originally presented, did not contain the necessary
material facts to constitute the cause of action to
challenge the election of the returned candidate, the
abovementioned application filed by the election
petitioner, even if it contain the necessary material facts,
B cannot be allowed as it would amount to permitting the
amendment of the election petition beyond the period of
limitation. [Para 31] [3~11-C-G]
1.8. The appeal is allowed and the election petition
C is dismissed. [Para 32] [331-G]
Kunwar Nripendra Bahadur Singh vs. Jai ram Verma and
Others (1977) 4 SCC 153: 1978 (1) SCR 208; Mohan Rawale
vs. Damodar Tatyaba (1994) 2 SCC 392: 1992 (3) Suppl.
SCR 850; Rahim Khan vs. Khurshid Ahmed and Others
D (1974) 2 SCC 660: 1975 (1) SCR 643; Dhartipakar Madan
Lal Agarwal vs. Rajiv Gandhi 1987 Supp SCC 93; Anil
Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar (2009)
9 SCC 310: 2009 (14) SCR 10; Samant N. Balakrishna vs.
George Fernandez and Others (1969) 3 SCC 238: 1969 (3)
E SCR 603; Sardar Harcharan Singh Brar vs. Sukh Darshan
Singh and Others (2004) 11 SCC 196: 2004 (5) Suppl. SCR
682 and Raj Narain vs. Smt. Indira Nehru Gandhi and
Another (1972) 3 SCR 841 - referred to.
F
Cas,e Law Reference:
In the judgment of Kabir, J.
(1985) 1 sec 91
referred to
Para 8
G
(1987) Supp. sec '93
referred to
Para 8
(2009) 9 sec 310
referred to
Para 9
(2000) 1 sec 481
referred to
Para 10
(2000) 2 sec 294
referred to
Para 11
H
AIR 2005 SC 22
retied on
Para 15
ISHWARDAS ROHANI v. ALOK MISHRA & ORS. . 293
(1972) 3 sec 850
referred to
Para 15
A
(1991) 3 sec 375
relied on
Para 19
In the judgment of Chelameswar, J.
1978 (1) SCR 208
referred to
Para 13
B
1992 (3) Suppl. SCR 850referred to
Para 15
1975 (1) SCR 643
referred to
Para 24
1987 supp sec 93
referred to
Para 25
c
2009 (14) SCR 10
referred to
Para 25
1969 (3) SCR 603
referred to
Para 25
2004 (5) Suppl. SCR 682 referred to
Para 27
(1972) 3 SCR 841
referred to
Para 27
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4189 of 2012.
From the Judgment & Order dated 05.10.2009 of the High
E
Court of Madhya Pradesh at Jabalpur in Election Petition No.
22 of 2009.
Dr. Rajeev Dhawan, Rakesh K. Khanna, Navin Prakash,
Anoop Jain, Ashwani Kumar Dubey, Vishal Panwar, Snehasish
Mukherjee, Ali Jethmalani, Sunil Murarka, Sandeep K. Mishra,
F
Asit Kumar Roy for the appearing parties.
The Judgments of the Court was delivered by
ALTAMAS KABIR, J. 1. Leave granted.
2. The Respondent No.1 herein, Shri Alok Mishra,
contested the 2008 elections to the Madhya Pradesh State
Assembly as a candidate of the Indian National Congress Party
from Cantt. Legislative Assembly No.99 Constituency, Jabalpur.
G
He was defeated in the elections by the Appellant herein as a
H
294
$UPREME COURT REPORTS
[2012] 13 S.C.R.
A
candidate of the Bharatiya Janata Party. The said Respondent
filed Election Petition No.22 of 2009, challenging the election
of the Appellant on the ground of corrupt practice, as
contemplated in Sub-Sections (1)(A) and (B), (2), (6) and (7)
of Section 123 of the Representation of the People Act, 1951 ,
B
hereinafter referred to as the "1951 Act".
c
D
E
F
H
3. The grounds re~lating to corrupt practice, as alleged by
the Respondent No.1 herein, inter alia, were to the following
effect:
(i)
as an Ex-M.L.A. and Ex-Speaker of the Vidhan
Sabha and being a close associate of the Chief
Minister of the State, the Appellant was able to exert
undue influence on the Collector, the District
Returning Officer and other authorities for procuring
their assistance for the furtherance of his prospects
in the elections;
(ii}
that on 2nd November, 2008, when the
Respondent No.1 was returning to Jabalpur from
New Delhi, as the authorized candidate of the Indian
National Cc1ngress, his supporters, who came to
meet him at the railway station, were arrested,
whereas the very next day, no action was taken
against the ~:;upporters of the Appellant herein who
had deployed as many as 300 vehicles in the
election rally organised on the occasion of the filing
of his nomination, although, permission had been
given for use of only 27 vehicles. The Appellant was
allowed to erect "welcome gates" at various places
and used unauthorized vehicles and also put up
flags, hoardings and posters on electric poles and
even on temples, despite the objections raised by
the Respondent No.1 herein;
(iii)
during his 1election campaign, the Appellant
distributed school bags reflecting the name of the
Appellant, as also his party flag amongst the
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
295
[ALTAMAS KABIR, J.]
children of the voters and huge amounts of money A
were also paid through cheques under the garb of
financial assistance by Garib Sahayata Samiti.
Apart from the above, clothes, sweets, blankets,
cheques for amounts of Rs.500/- to the female
voters and identity and ration cards, were
B
distributed amongst the voters by the supporters of
the Appellant, but no action was taken either against
the Appellant or his agent for resorting to such
corrupt practice. Accordingly, in the election petition
the Respondent No.1, inter alia, prayed for a c
declaration that the election of the Appellant herein,
lshwardas Rohani, be declared as void and he be
declared as the returned candidate.
4. In the pending Election Petition No.22 of 2009, an
Application, being l.A.No.58 of 2009, was filed on behalf of the
D
Appellant herein, under Order VII Rule 11 read with Order VI
Rule 16 of the Code of Civil Procedure, hereinafter referred to
as "C.P.C.", praying that the Election Petition filed by the
Respondent No.1 be rejected, inter alia, on the ground that
. except for making vague allegations of corrupt practice, the
E
Respondent No.1 (Election Petitioner) had failed to disclose
material facts and particulars in respect thereof. Another ground
of challenge was that the Respondent No.1 had failed to
comply with the provisions of Section 81(3)(a) and (b), which
are mandatory and in the absence whereof no cause of action
F
could be said to have been available to the Election Petitioner
to seek any relief thereunder.
5. l.A.No.58 of 2009, which was filed by the Appellant
under Order VII Rule 11 read with Order VI Rule 16 C.P.C. for G
rejection of the Election Petition or for a direction to set out
pleadings specified thereunder, was taken up for hearing by
the Madhya Pradesh High Court on 16th July, 2009. After
considering the facts involved in the Election Petition, as also
in the Application filed under Order VII Rule 11 read with Order
VI Rule 16 of the C.P.C., the High Court was of the view that
H
296
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
although, the allegations of corrupt practice had not been
properly drafted, the Election Petition could not be rejected on
the said ground.As far as the Application under Order VI Rule
16 C.P.C. is concernEtd, the High Court observed that nonrevision of the voters list is not a ground set out in Section 100
B of the 1951 Act for declaring an election to be void. The High
Court also observed that violation of the Model Code of
Conduct cannot also be treated as a ground for declaring an
election to be void. On the said understanding of the law, the
High Court allowed the Appellant's l.A.No.58 in part and
c directed the Appellant to :
(i)
delete the pleadings relating to voters' list and
Model Cod1:i of Conduct;
(ii)
move an appropriate application for amending the
b
pleadJngs in the light of the objections raised by the
Respondent No.1 and the defects as pointed out
in paragraph 2, subject to the limits circumscribed
by law. The High Court also added that after
amending the pleadings suitably, the Appellant
E
would also verify the same by furnishing an affidavit
under Order VI Rule 15(4) C.P.C. and further verify
the pleadings relating to corrupt practice by filing a
proper affidavit in the prescribed Form No.25, as
prescribed under Rule 94-A and appended to the
F
Conduct of the Election Rules, 1961.
6. Aggrieved by thEt directions given by the High Court in
I.A. No.58, directing the Respondent No.1 herein to delete the
pleadings relating to the voters' list and the Model Code of
Conduct and to move an appropriate application for amending
CD
the pleadings in the light of the objections raised by the
Appellant herein, the said Appellant has filed the Special Leave
to Appeal challenging the said directions dated 5th October,
2009, in Election Petition No.22 of 2009.
H
7. Appearing for the Appellant, lshwardas Rohani, Dr.
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
297
[ALTAMAS KABIR, J.]
Rajeev Dhawan, learned Senior Advocate, submitted that all
A
the allegations relating to corrupt practice were in respect of
periods prior to the date of the notification of the elections,
namely, 29th October, 2008, when the Election Petitioner, Shri
Alok Mishra, was not yet a candidate, nor was the Appellant
herein. Dr. Dhawan pointed out that the elections were notified
B
for the Jabalpur Cantt. Legislative Assembly Constituency
No.99 on 29th October, 2008. On 3rd November, 2008, the
Election Petitioner, Mr. Alok Mishra, filed his nomination papers
and the polling was held on 27th November, 2008. The results
of the election were thereafter announced on 8th December, c
2008, in which the Appellant was declared to have been
elected. Dr. Dhawan termed the period between 29th October,
2008, when the elections were notified, till 8th December, 2008,
when the results were declared, as the "active" period, when
the conduct of the elected member could be faulted. Dr.
D
Dhawan submitted that the Election Petition had been filed by
the Respondent No. 1 herein within the period of 45 days, as
specified under Section 81 of the 1951 Act. However, the
directions given by the High Court to amend the Election
Petition were not permissible in law as such amendment would
be beyond the period of limitation, as prescribed. Following
E
such directions of the High Court, the Election Petitioner filed
an Application under Order VI Rule 17 CPC praying for various
amendments for providing material facts.
8. Dr. Dhawan urged that given the consequences of
F
disqualification, allegations of corrupt practice would have to
be strictly construed, as was held in the case of Surinder Singh
Vs. Hardial Singh [(1985) 1 SCC 91], wherein it was, inter alia,
observed that for more than 20 years the position had been
uniformly accepted that charges of corrupt practice have to be
G
equated with criminal charges and the proof thereof would not
be preponderance of probabilities as in civil matters, but proof
beyond reasonable doubt as in criminal trials. Reference was
also made to the decision in Dhartipakar Madan Lal Agarwal
H
298
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
Vs. Rajiv Gandhi [(1987) Supp. SCC 93], wherei~ it was
observed as follows :-
B
c
"Allegations of corrupt practice are in the nature of criminal
charges, it is necessary that there should be no vagueness
in the allegations so that the returned candidate may know
the case he has to meet. If the allegations are vague and
general and the particulars of corrupt practice are not
stated in the pl1eadings, the trial of the election petition
cannot proceed for want of cause of action. The emphasis
of law is to avoid a fishing and roving inquiry. It is therefore
necessary for the Court to scrutinise the pleadings relating
to corrupt practice in a strict manner."
In this regard, Dr. Dhawan referred to the provisions of
Section SA of the 1951 Act, which sets out the harsh
D consequences of having been found guilty of corrupt practice
by an order under Seiction 99 of the 1951 Act.
9. Submissions were also advanced by Dr. Dhawan in
regard to the distincti()n between "material facts" and "material
E particulars", which daies not appear to me to be very material
for a decision in this case. What is necessary is that the material
facts must disclose the plaintiff's cause of action or may be the
source for the defence of the defendant. What is relevant is that ·
the facts as set out in the Election Petition must not be vague
and must be such as to enable the Respondent to deal with
F and give a proper response. Dr. Dhawan contended that as
has been held by this Court in Anil Vasudev Salgaonkar Vs.
Naresh Kushali Shig<~onkar [(2009) 9 SCC 310), the failure
to state even a single material fact will entail dismissal of the
Election Petition. Furthermore, it is also essential that any
G action which is attributed to an elected candidate and goes to
constitute an allegation of corrupt practice, must be shown to
have been done with the consent of the candidate, which, as
was observed in Surinder Singh's case (supra), is a lifeltne to
link up the candidate with the action of the other person which
H may amount to corrupt practice.
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
299
[ALTAMAS KABIR, J.]
10. Turning to another branch of his submissions, Dr.
A
Dhawan submitted that where corrupt practices are alleged,
details supporting such allegations have to be pleaded.
Referring to the decision of this Court in R.P. Moidutty Vs. P. T.
Kunju Mohammad [(2000) 1 SCC 481], Dr. Dhawan referred
to paragraph 14 of the judgment, wherein it has been observed
B
as follows:-
"The legislature has taken extra care to make special
provision for pleadings in an election petition alleging
corrupt practice. Under Section 83 of the Act ordinarily it
would suffice if the election petition contains a concise C
statement of the material facts relied on by the petitioner,
but in the case of corrupt practice the election petition must
set forth full particulars thereof including as full a statement
as possible of (i} the names of the parties alleged to have
committed such corrupt practice, (ii) the date, and (iii} D
place of the commission of each such practice. An election
petition is required to be signed and verified in the same
manner as is laid down in the Code of Civil Procedure,
1908 for the verification of pleadings. However, if the
petition alleges any corrupt practice then the petition has
E
additionally to be accompanied by an affidavit in Form 25
prescribed by Rule 94-A of the Conduct of Elections Rules,
1961 in support of the allegations of such corrupt practice
and the particulars thereof. Thus, an election petition
alleging commission of corrupt practice has to satisfy some
F
additional requirements, mandatory in nature, in the matter
of raising of the pleadings and verifying the averments at
the stage of filing of the election petition and then in the
matter of discharging the onus of proof at the stage of the
trial."
G
11. In fact, in this regard, Dr. Dhawan also referred to
Section 83(1 }(b} of the 1951 Act, which indicates that full
particulars of any corrupt practice that the Petitioner alleges and
other details regarding such corrupt practice has to be set forth
H
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SUPREME COURT REPORTS
[2012] 13 S.C.R.
A in the Election Petition and the verification must disclose the
exact source of the information. Reference was also made to
the decision in V. Narayanaswamy Vs. C.P. Thirunavukkarasu
[(2000) 2 sec 294], where similar sentiments have been
expressed.
B
12. Dr. Dhawan urged that having regard to the above, the
Election Petition filed by the Respondent No.1 should have been
dismissed by the High Court, without giving an opportunity to
the Election Petitioner to rectify some of the defects, outside
the period of limitation, as prescribed under Section 81 of the
C 1951 Act.
13. Dr. Dhawan, learned senior counsel, contended that
all the alleged instanices referred to in the Election Petition
regarding alleged corrupt practice on the part of the Appellant
D · were outside the "active period" when the Respondent No.1
was not even a candidate and consequently the same could not
be taken into consideration for the determination of the Election
Petition in view of Section 81 of the 1951 Act, which stipulates
that such a Petition may be presented by any candidate at such
E election or any elector within forty-five days from, but not earlier
than the date of electii:>n of the returned candidate.
14. Replying to Dr. Dhawan's submissions, Mr. Rakesh
Khanna, learned S1enior Advocate, appearing for the
Respondent No.1, pointed out that the allegations relatin·g to
F corrupt practice made against the Appellant, are contained in
paragraph 10 of thE~ Election Petition and despite the
observations made by the High Court, the same conveyed the
manner in which financial allurements and the distribution of gifts
were made, as also the issuance of cheques by the Appellant
G from the Indus Ind Bank near Shastri Bridge, 124, Napier Town,
Jabalpur. Mr. Khanna contended that although Dr. Dhawan had
referred to the issuance of cheques as being a fishing
expedition, but, in fact, the details relating to the cheques are
in the custody of the Indus Ind Bank and are easily available.
H Mr. Khanna submitted that the details of the cheque books and
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
301
[ALTAMAS KABIR, J.]
the cheque numbers have also been provided in paragraph 9 A
of the Election Petition which disclosed the strategy adopted
by the Appellant for garnering votes in the election.
15. Referring to the decision of this Court in Sardar
Harcharan Singh Brar Vs. Sukh Darshan Singh [AIR 2005 SC
B
22), which also involved the provisions of Section 83 of the 1951
Act, Mr. Khanna pointed out that even if all the bundles of
information which constitute the cause of action for the Petition
were not available in the Election Petition, the same could not
be dismissed at the threshold. Mr. Khanna submitted that in
Sardar Harcharan Singh Brar's case (supra), this Court had
C
occasion to consider the observations made in the decision in
the case of Raj Narain Vs. Smt. lfl{fira Nehru Gandhi [(1972)
3 sec 850), which, inter alia, laid down that while a corrupt
practice has to be strictly proved, it does not follow that a
pleading in the election petition should receive a strict D
consideration. The charge of corrupt practice in an election
petition is a.very serious charge and has to be proved. It may
or may not be proved. The allegations may be ultimately proved
or not proved. But the question for the Courts is whether a
petitioner should be refused an opportunity to prove his
E
allegations merely because the petition was drafted clumsily.
16. Mr. Khanna submitted that it was in such context that
it was observed that opportunity to prove should not be refused
and the Court should be reluctant to stay an action on technical
F
grounds. In the said case it was further recorded that "material
facts" as referred to in Section 83 of the 1951 Act show that
the grounds of corrupt practice and the facts necessary to
formulate a complete-cause of action, must be stated, but the
Election Petition is not liable to be dismissed in limine because
G
full particulars of the corrupt practices alleged were not set out.
If an objection was taken and the Tribunal was of the view that
full particulars had not been set out, the Petitioner had to be
given an opportunity to amend or amplify the particulars. It is
only in the event of non-compliance with such order to supply
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302
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A the particulars, that the charge, which remained vague, could
be struck down. Mr. Khanna pointed out that a note of caution
had been sounded to the effect that rules of pleadings are
intended as aids for a fair trial and for reaching a just decision.
An action at law should not be equated with a game of chess.
B Provisions of law are not mere formulae to be observed as
rituals. Beneath the words of a provision of law, generally
speaking, there lies a juristic principle. It is the duty of the Court
to ascertain that principle and implement it.
17. Mr. Khanna submitted that in SardarHarcharan Singh
C Brar's case (supra), it was pointed out that the views expressed
in Raj Narain's case (supra) had been subsequently reiterated
in various other cases s1~t out in paragraph 11 of the judgment.
18. Drawing a parallel with the facts of this case, Mr.
o Khanna submitted that the High Court had passed the
impugned order in complete consonance with the views
expressed in Sardar Harcharan Singh Brar's case (supra).
19. Mr. Khanna next referrea to the decision of a three
Judge Bench of this Court in F.A. Sapa & Ors. Vs. Singora &
g Ors. [('1991) 3 SCC ~175), wherein the requirements of
furnishing material facts and full particulars, within the meaning
of Section 83(1) of the 1951 Act, in order to establish corrupt
practice, was considered in detail. After considering the various
decisions rendered earlier, including that in Raj Narain's case
F (supra), on the question of verification, Their Lordships held that
Clause (c) of Sub-Section (1) of Section 83 of the 1951 Act,
provides for an Election Petition to be signed by the petitioner
and verified in the manner laid down by the Code of Civil
Procedure for the verification of the pleadings. It was noted that
G under Section 83(2) any schedule or annexure to the pleading
must be similarly verified. Referring to Order VI Rule 15 of the
Code, Their Lordships to1:>k note of Sub-Rule (2) which provides
that the person verifying has to specify with reference to the
numbered paragraphs of the pleading, what he verifies on his
H own knowledge and what he verifies upon information received
ISHWARDAS ROHANI v. ALOK MISHRA & ORS.
303
[ALTAMAS KABIR, J.]
and believed to be true. The verification has to be signed by
A
the person making it and must state the date on and the place
at which it was signed. However, Their Lordships also went on
to say that the defect in the verification could be of a formal
nature and not very substantial, or one which substantially
complies with the requirements, or that which is material but
B
capable of being cured. Mr. Khanna submitted that the bottom
line of the aforesaid decision was that any defect in the
verification was not fatal to the entertainment of the Election
Petition at the threshold and as indicated in Sardar Harcharan
Singh Brar's case (supra), an opportunity ought to be given to c
the Election Petitioner to cure such defect.
20. Mr. Khanna submitted that the submissions advanced
by Dr. Dhawan in, relation to the order passed by the High
Court, were contrary to the decisions .rendered by this Court in
Sardar Harcharan Singh Brar's case (supra) and also in F.A.
D
Sapa's case (supra), and all that the Court had directed was
in keeping with the spirit of the said decisions which
contemplated that an Election Petition, where corruption had
been alleged, should not be thrown out on a purely technical
ground, such as defect in verification of the pleadings, and
E
without giving an opportunity to the Election Petitioner to cure
such defect.
21. From the decisions cited by learned counsel for the
respective parties, one line of decisions rendered by this Court
F
suggests that since an Election Petition has serious
consequences under Section BA of the 1951 Act, the
provisions of the Act have to be strictly construed and,
particularly, in cases where corruption is alleged, any omission
in the pleadings to mention such corrupt practice would render
G
the Election Petition not maintainable. On the other hand, as
indicated immediately hereinbefore, the other line of decisions
suggests that since the issue involved in an Election Petition
alleging corrupt practice, was of great public interest, an
Election Petition should not be rejected at the threshold, but an
H
304
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A opportunity should be given to the Election Petitioner to cure
the defects which are curable. In the instant case, what has
been contended by Dr. Dhawan is that in the absence of a
cause of action or incomplete cause of action for the Election
Petition on account of the verification thereto not being in
B conformity with the provisions of Order VI Rule 15 of the C.P.C.
the Election Petition was liable to be dismissed. Such
submission is not acceptable to me in the light of the decisions
in Sardar Harcharan Singh Brar's case (supra) and also in
F.A. Sapa's case (suprai), despite the fact that in F.A. Sapa's
C case it was indicated that if the affidavit of schedule or annexure
forms an integral part of the Election Petition itself, strict
compliance would be insisted upon.
22. I am inclined to agree with the trend of thinking in F.A.
Sapa's case, where it had been indicated that a charge of
D corrupt practice has a two dimensional effect, namely, its
impact on the returned candidate has to be viewed from the
point of view of the candidate's future political and public life
and from the point of view of the electorate to ensure the purity
of the election process. Accordingly, there has to be a balance
E in which the provisions of Section 81 (3) of the 1951 Act are
duly complied with to safeguard the interest, both of the
individual candidate, as well as of the public. In this case, while
accepting the case made out by the Appellant regarding the
deficiencies in the Election Petition, the Division Bench of the
F High Court, in my view, did not commit any error in directing
the Election Petitioner to cure the defects in the Election
Petition, which had been brought out during the hearing of the
Election Petition.
G
23. The decisions cited on both sides, lay down the law in
regard to Election Petitions and how Election Petitions are to
be presented and the procedure to be strictly followed in filing
such Election Petitions, in which corruption, in particular, is the
allegation made against the returned candidate. There is little
doubt that the provisions have to be strictly construed, but that
H
ISHWARDAS ROHAN! v. ALOK MISHRA & ORS.
305
does not mean that any defect in the Election Petition cannot
A
be allowed to be cured in the public interest. If after an
opportunity is given, still no steps are taken by the Election
Petitioner to cure the defects which are noticed, then the rigours
of the procedure indicated by the 1951 Act, come into effect
with full vigour.
B
24. I, therefore, see no reason to interfere with the order
of the High Court appealed against and the appeal is,
accordingly, dismissed.
25. There will, however, be no order as to costs.
C
CHELAMESWAR, J. 1.