ORDER
1. The petitioner, who was a candidate in the general elections for the Lok Sabha seat from 25-Amethi Parliamentary Constituency District Sultanpur, has filed the present petition challenging the election of the respondent on a number of grounds.
2. Appearance in this case was put in on behalf of the respondent by Sri S. C. Maheshwari on 13-2-1990, who, on the next date, i.e. 15-3-1990, filed an application under Order VI, Rule 16, Order VII, Rule II and Section 151, Code of Civil Procedure read with Sections 86 and 87 of the Representation of the People Act, 1951 with the prayer that paras 8 to 21 of the election petition may be struck off and the election petition itself may be dismissed as not disclosing any cause of action. A copy of this application was given to the petitioner who filed his reply on 10-4-90. On that date respondent's application (C.M. Application No. 37(E) of 1990) was taken up for hearing.
3. I have heard the petitioner who argued the case personally and Sri S. C. Maheshwari who made his submissions on behalf of the respondent.
4. It has been contended by Sri S. C. Maheshwari that although the petitioner has founded the petition on a number of corrupt practices alleged to have been committed by the respondent, the material facts constituting -the corrupt practices have not been indicated nor has the petitioner given full particulars of the said corrupt practices with the result that the petition is liable to be dismissed on the ground that it does not disclose a cause of action. The petitioner, on the contrary, maintains that the petition cannot be dismissed in a summary manner on the ground that it does not disclose a cause of action as the petition fully complies with the requirement of Sec. 83 of the Representation of the People Act which deals with the contents of the petition and lays down that the petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice, 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.
5. Section 100 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) contains the grounds on which the election of a returned candidate can be questioned.
6. In para 8 of the petition the petitioner has stated that the election of the respondent is liable to be declared void under Section 100(i)(b) and Section 100(i)(s)(iv) as the respondent has committed corrupt practice. There is no sub-section (s) in Section 100 and perhaps the petitioner intended to speak of Section 100(i)(d)(iv) of the Act.
7. Corrupt practices have been specific in Section 123 of the Act.
8. Section 83, which deals with the contents of the election petition, provides 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."
9. The section requires that the petition shall only contain a concise statement of a material facts, it shall also set forth full particulars of any corrupt practice that the petitioner alleges to have been committed by the returned candidate. It further requires that full particulars shall include 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 such corrupt practice.
10. In order to understand the meaning of the phrase "concise statement of the material facts" I would first refer to a number of Supreme Court decisions in which the meaning of the phrase has been explained and the distinction between the phrase "material facts" and "full particulars" have been laid down.
11. Jn Udhav Singh v. Madhav Rao Scindia (AIR 1976 SC' 744) the Supreme Court laid down as under at page 752 SC of AIR 1976.
"The distinction between "material facts"
and "material particulars" is important be cause different consequences may follow from a deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16 Code of Civil Procedure. If the petition is passed solely on these allegations which suffer from lack of material facts the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limita tion."
"all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice "material facts", would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts, which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a)."
12. In Daulat Ram Chauhan v. Anani Sharma (AIR 1984 SC 621) the Supreme Court laid down as under at page SC 625 of AIR 1984 :--
'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 debarring the candidature concerned from contesting a 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 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 practice alleged were indulged in by (a) the candidate himself (b) his authorised election agent or any other person with his express or implied consent."
13. In Samant N. Bala Krishna v. George Fernandez (AIR 1969 SC 1201) the Supreme Court made the following observations AIR 1969 at page SC 1212:-
"First, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of persons with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts, it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice, must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts."
It is also useful to reproduce the observations of the Supreme Court in Raj Narain v. Indira Nehru Gandhi (AIR 1972 SC 1302) to the following effect:--
"From these two provisions, it follows that if the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further these allegations cannot be amended after the period of limitation after filing an election petition; but the Court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified. The scope of these provisions has been considered in several decisions on this point is Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370: (AIR 1957 SC 444). It is not necessary to go to that decision as the ratio of that decision has been elaborately explained by this Court in Samant N. Balakrishnan v. George Fernandez, (1969) 3 SCR 603 : (AIR 1969 SC 1201). Dealing with the scope of Sections 83 and 83(5), this Court observed that Section 83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars of the corrupt practice alleged. "Material facts" and "particulars" may overlap but the word "material" shows that the grounds of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The function of the particulars is to present as full a picture of the cause of action to make the opposite party understand the case he will have to meet......
facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the fact must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy that requirement then they do not give rise to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition."
The Supreme Court further observed as under:--
"If the accusation made is nebulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold."
14. Reference may also be made to the decision rendered by the Supreme Court in Azhar Husain v. Rajiv Gandhi, AIR 1986 SC 1253 : (1986 All LJ 625) in which the earlier views have been reiterated.
15. Having thus understood the meaning of the phrase "material facts" and "full particulars" and the significance of the phrase "cause of action" as also consequence flowing from not disclosing of cause of action, let me proceed to examine whether the present petition fulfils the requirement of S. 83 as understood and explained by the Supreme Court in its decisions referred to above.
16. Paras 1 to 7 of the petition containthe introductory facts.
Para 8 of the petition has already been referred to above.
In para 9 of the petition the petitioner has asserted that the respondent had abused the Government machinery and had abused the powers of Prime Minister of India to prosper his candidature. He has further asserted that for furtherance of his election prospects, Shri Rajiv Gandhi (respondent) influenced the Government machinery as he was the Prime Minister of India during the election period. He thus abused the power which he exercised as Prime Minister of India.
17. The allegations contained in para 9 of the petition are absolutely vague. The petitioner has nowhere explained or pleaded as to how and in what manner had the respondent abused the power of the Prime Minister of India to prosper his candidature or in what manner and which particular Government machinery had been abused by him for the furtherance of his election prospects. The pleadings contained in para 9 of the petition are so vague that it is not possible to categories the corrupt practices set out in various clauses of S. 123 of the Act which would cover the case set out in this para of the petition.
18. In para 10 of the petition it has been asserted that the election of 25 Amethi Parliamentary Constituency was not free and fair and that the respondent being the Prime Ministership by not conducting the free and fair election. The petitioner proceeds to say as under:--
"The petitioner narrates below how it was not free and fair election."
19. The petitioner then proceeds to narrate in paras 11 and 12 of the petition that the respondent had abused the post of Prime Ministership and had directed the Police Department/C.I.D. to watch the activities of the petitioner and watch the standard of living of the petitioner. It is pleaded that the news of this effect was published in the Marathi paper "Lok-Satta" Bombay and Nagar News, Sindhi Daily of Ulhas Nagar. The petitioner further says that: thus, through the police and C.I.D. Department the respondent "threatened the petitioner and reduced the courage and morality of the petitioner for doing the election campaign." The petitioner further alleged that this was done by the Police Department/C.I.D. under the directions of the respondent. This has been pleaded by the petitioner to constitute a corrupt practice within the meaning of S. 123 of the Representation of the People Act.
20. In para 12 of the petition the petitioner has pleaded that the Election Commissioner or the Government or the respondent himself did not direct the Police/C.I.D. Department to watch thhe activities of the respondent and thus the election was not conducted in accordance with the principles of "Law of Equality". It is pleaded that in conducting the election, the provisions of the Indian Constitution and the principles contained therein were violated which amounted to a corrupt practice within the meaning of Section 123 of the Act.
21. In para 17 of the petition, the story of the police involvement is also contained oa pages 14,15 and 16 of the petition. Beginning from the bottom on page 14 and contained on page 15 and part of page 16 the story regarding the involvement of police force is contained in the following words:--
"The respondent-Shri Rajiv Gandhi committed the corrupt prasctice of getting the assistance for the furtherance of his prospects from the Government servants and members of the Police Force.
The respondent Sri Rajiv Gandhi ordered the Uttar Pradesh Government and Uttar Pradesh Police and Government of Mahara-shtra and Police of Maharashtra to post the Police in the house of petitioner and watch the activities of the petitioner and thereby prevented the petitioner from doing the election cmpaign or thereby restricted the election campaign of the petitioner and thus increased further prospects of winning the election for himself i.e. for respondent Shri Rajiv Gandhi.
The Government of Uttar Pradesh sent the three police people to the house of the petitioner from Sultanpur and out of three police people two police people stayed in Ulhas Nagar.
The respondent Shri Rajiv Gandhi posted the Maharashtra Police Round the Clock through Shahed Police Station, Ulhas Nagar-1, District Thana, Bombay Maharashtra.
The Police was posted under the orders of respondent Shri Rajiv Gandhi and with the consent of the respondent Sri Rajiv Gandhi. Thus the respondent Sri Rajiv Gandhi restricted the Election Campaign of the petitioner through the Police of Uttar Pradesh and Police of Maharashtra for increasing the further prospects of winning the election for himself respondent Sri Rajiv Gandhi."
22. These paras, namely, paras 11,12 and part of para 17 may be taken up together for consideration.
23. In paras 11 and 12 of the petition the petitioner has made extremely vague allegations. It is not specified in para 11 which was the Police/C.I.D. which was directed to watch the activities of the petitioner or to watch his standard of living. It is further not stated or specified as to what threat was given to the petitioner by the respondent through the Police and the C. I. D. The nature of the threat has not been indicated nor has the petitioner set out the material facts or particulars in this para of the petition.
24. So far as the principles of equality pleaded in para 12 are concerned, it may be pointed out that this again is a vague plea which cannot go to trial.
25. So far as the plea contained on pages 14, 15 and 16, which have already been reproduced above, is concerned it may be stated that the petitioner has himself stated that the respondent had committed the corrupt practice of getting assistance, for the furtherance of his prospects, from the Government servants and members of the Police force. The corrupt practice of this nature would fall in Section 123(7) of the Act which is reproduced below:--
"123 (7) -- The obtaining or procurring 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 in the service of the Government and belonging to any of the following classes, namely:--
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forced of the Union;
(d) members of the.police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars, mal-guzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election".
26. It has been pleaded by the petitioner that the respondent had ordered U. P. Government and the U.P. Police as also the Government of Maharashtra and Police of Maharashtra to post the police in the house of the petitioner and watch the activities of the petitioner. It is pleaded that the petitioner was thereby prevented from doing election campaign and the petitioner's election campaign was restricted. This increased the prospects of the winning of the election by the respondent.
27. Now, the case pleaded by the petitioner is that because the election campaign of the petitioner was restricted on account of the posting of the police, the prospects of the respondent had increased.
28. The allegations do not contain material facts nor do they contain full particulars of the corrupt practice alleged to have been committed by the respondent.
29. The petitioner has not specified the nature of the assistance which was obtained by the respondent nor has he given details and particulars of his election programme to indicate as to how and in what manner was his campaign affected by the police.
30. The petitioner has not set out the places of his constituency which could not be visited by him on account of the police posted in his house at Ulhas Nagar, district Thana (Maharashtra). How did the police, and if so which officer of which rank or which constables, carry out the directions of the respondent and what are those directions of the respondent have not been specified nor has the petitioner set out the details, as to how and in what manner was his election campaign affected and how and in what manner were the prospects of the respondent increased.
31. The essential ingredients of the corrupt practice of obtaining or procurring or abetting or attempting to obtain or procure the assistance from the members of the police force have not been set out in the petition nor, as pointed out earlier, the details have been given. The allegations were vague and to borrow the word of the Supreme Court, nebulous, so as to enable the petitioner to prove at the trial any activity of any of the Government officers in the U.P. or Maharashtra Police which suits him to prove.
32. In para 18 of the petition it has been alleged that when the petitioner filed nomination paper before the Returning Officer of 25 Amethi Parliamentary Constituency, the latter, namely the Returning Officer administered the oath while sitting in his chair although the oath should have been administered by the Returning Officer while standing and not sitting. The petitioner, therefore, assumed that oath was administered in that manner to all other candidates including the respondent. It is pleaded that the oath administered to the respondent was no oath at all and, therefore, the election of the respondent was void and liable to be set aside. He further pleaded that the oath was in violation of Article 84(a) of the Indian Constitution and it was in further violation of Notification No. 3/366 dated 25th April, 1967 substituted by Notification No. S. 0. 3798 dated 25th October, 1968. The petitioner pleaded that the election was held in violation of the provisions of the Constitution of India and the Act and Rules and Orders made under the Act. It was available under Section 100(1)(d)(iv) of the Act.
33. The question regarding the oath being administered to the candidates by a Returning Officer while sitting and not whie standing was pleaded by the petitioner in his earlier Election Petition No. 4 of 1985 filed against the present respondent and this court by its judgment and order dated 6th May, 1985 had rejected the contention. This Court had observed as under:--
"The petitioner has not been able to show that Form III-A in the IIIrd Schedule to the Constitution of India prescribed for oath or affirmation to be made by a candidate, for election to the Parliament, under Article 84(a) of the Constitution of India, requires the Returning Officer to be in a particular position (sitting or standing) at the time of making of oath by the candidate. The ground under section 100(i)(d)(iv) of the Act has to be one of non-compliance of any provision of the Constitution or of the Act. In the absence of a specific provision in the Constitution or in the Act that a Returning Officer must remain in a sitting position, at the time when oath or affirmation is made by a candidate, the ground urged cannot be said to exist."
34. I respectifully agree with the view expressed by brother Kamleshwar Nath, J. in the above case.
35. In any case, while raising the ground under Section 100(l)(d)(iv) the petitioner has also to plead that the result of the returned candidate, namely, that of the respondent was materially affected. This the petitioner has not pleaded and consequently the pleadings in this regard cannot go to the trial particularly when the petitioner himself is not sure in what manner was oath administered to the respondent at the time of the filing of nomination paper.
36. Reverting back to other paras of the petition it may be pointed out that para 13 of the petition has been deleted at the instance of the petitioner himself who made a sttement before the court that he does not press the contents of para 13 of the petition and they may be deleted from the petition. This was recorded in the order sheet which was also signed by the petitioner. In view of this statement of the petitioner an order was passed on that very date, i.e. 10-4-90, that para 13 of the petition is deleted.
37. Coming now to para 14 of the petition, it may be pointed out that in this para of the petition the petitioner has pleaded that the respondent has committed corrupt practices under all sub-sections of Section 123 of the Act.
38. It is pointed out that the respondent had announced "Indira Yojna" for the ladies in India offering or promising favour of the ladies through Indira Yojna and in that way the respondent induced the lady voters to vote for him. It is pointed out that the Election Commission demanded the explanation of the respondent on "Indira Yojna", which was substituted by the respondent to the Election Commission and the Election Commission declared that the "Indira Yojna" was in violation of the conduct Rules for contesting the Lok Sabha Election. It is pointed that all the votes cast in favour of the respondent by the lady voters are liable to be excluded. It is pleaded that the announcement of "Indira Yojna" amounted to "bribe" within the meaning of Section 123(1) of the Act. The petitioner further pleaded in para 17 of the petition that while announcing the "Indira Yojna", the respondent knew that "Indira Yojna" was false and that he would not be able to fulfil his requirements. This amounted to corrupt practice within the meaning of Section 123(4) of the Act.
39. The corrupt practice of "bribery" has been defined in Section 123(1) of the Act. The ingredients of this section shall have to be kept in view before proceeding to analyse the case of the petitioner to find out whether or not the case falls within the clutches of Section 123(1) of the Act.
40. The petitioner has pleaded that the respondent announced the "Indira Yojna" for the ladies in India offering or promising favour to the ladies through "Indira Yojna".
41. What is "Indira Yojna", what are the details of this Y'ojna, when, namely (date, time and place) was it announced by the respondent, what promise was held out to the ladies in India and in what way the ladies were to be favoured through "Indira Yojna", have not been set out in the petition. In the absence of these details it cannot be said that the ingredients of any corrupt practice contemplated by Section 123(1), namely, the bribery were set out in the petiiion. The petitioner has kept his pleading absolutely vague and in the absence of the aforesaid vital fact it cannot be said that any cause of action relating to the corrupt practice was at all disclosed in the petition.
42. In this connection the petitioner has also tried to raise the plea of corrupt practice contemplated by section 123(4) of the Act by pleading that the respondent had made a false statement regarding Tndira Yojna as he himself knew that "Indira Yojna" was false and that would not be able to fulfil (he promise. Mere making of a statement of fact, which is false and which the candidate either believes to be false or does not believe to be true, will 'not by itself be a corrupt practice unless the statement was published and was made in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate in the election.
43. In the instant case the statement relied upon by the petitioner to constitute a corrupt practice within the meaning of Section 123(4) does not relate, to the personal character or conduct of any candidate nor can it be said to have been made in relation to the candidature or withdrawal of a candidate. The statement relied upon by the petitioner is a statement made by the respondent regarding "Indira Yojna". It cannot, therefore, be said that any corrupt practice contemplated by Section 123(4) of the Act was pleaded.
44. Another corrupt practice pleaded by the petitioner is that the respondent had influenced the voters of his constituency to vote for him in the name of Almighty or God. This plea is contained in para 15 of the petition wherein it has been stated that the respondent had committed a corrupt practice under Section 123(3). It is said that the respondent Sri Rajiv Gandhi had pasted the posters of his mother late Smt. Indira Gandhi in the constituency to influence the voters to vote for the son of late Smt. Indira Gandhi. The petitioner proceeds further to say that a dead person is the property of Almighty or God. Smt, Indira Gandhi, after her death, became the property of God and since Sri Rajiv Gandhi had influenced the voters of the constituency to vote for him by pasting the posters of Smt. Indira Gandhi, he had committed the corrupt practice contemplated by Section 123(3) of the Act as he had demanded the votes in the name of the God or Almighty.
Section 123(3) is quoted below:-- "123(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language' or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol alloted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause."
45. The essential ingredients of the corrupt practice contemplated by sub-section (3) of Section 123 are that the appeal should be made by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting for any person. This appeal should be founded on the ground of religion, race, caste, community or language or the the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem. Such appeal would amount to corrupt practice within the meaning of this clause provided it is made for the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of a candidate.
46. The petitioner, instead of pleading the basic facts which would constitute a corrupt practice within the meaning of Section 123(3), has raised a novel plea of a dead person becoming the property of God or Almighty and further saying that soliciting the vote by pasting the posters of that person would amount to soliciting the votes on religious grounds. Such a plea cannot be said to constitute a corrupt practice specified in Section 123(3). The essential ingredients of .Section 123(3) have already been reproduced above and the plea raised by the petitioner falls outside the scope of Section 123(3). This plea, therefore, cannot be entertained and the petitioner cannot be said to have disclosed any cause of action relating to the corrupt practice of soliciting votes in the name of religion as contemplated by Section 123(3) of the Act.
47. The petitioner has raised another plea relating to religion. This plea is contained in para 19 of the petition in which the symbol "Hand "allotted to the respondent was said to be a religious symbol. It will be useful to reproduce para 19 of the petition as under :--
"19. The voters of the 25-Amethi Parliamentary Constituency were canvassed that the symbol of respondent Shri Rajiv Gandhi is hand and in hand there are five fingers. These five fingers remind Pancha Pandwas and it holds a clear promise of victory in the electoral battle. Moreover the Muslims every day do the Namaz for five times and being five fingers in the hand it is the reminder to the Muslims because of five time Namaz. The whole 25-Amethi Parliamentary Constituency was pasted with posters showing the hand and this was the divine reminder to muslims to vote for respondent-Shri Rajiv Gandhi. Thus the votes were secured by religious means which is the corrupt practice."
48. The five fingers of the hand, it is pleaded, remind Pancha Pandvas. The five fingers also remind the Muslims of offering
- their "Namaz" five times a day. It is for these reasons that the petitioner pleaded that the symbol of "Hand" allotted to the respondent was a religious symbol and that the respon-
dent had secured votes by religious means which was a corrupt practice.
49. The ingredients of the corrupt practice of Section 123(3) have been discussed above. The plea set out by the petitioner in para 19 of the petition does not fall within the scope of Section 123(3) of the Act.
50. The proviso to section 123(3) says that no symbol allotted under the act to a candidate shall be deemed to be a religious symbol or a national symbol. It is not disputed that the symbol "Hand" was a symbol allotted under the Act. The proviso to Section 123(3) is, therefore, a complete answer to the petitioner's ingenious plea that the symbol "Hand" was the religious symbol or that the votes were secured by religious means. This plea again cannot, therefore, be allowed to go to the trial.
51. The petitioner then pleaded the corrupt practice contemplated by Section 123(6) of the Act by saying that the respondent had incurred the election expenditure in contravention of Section 77 of the Act. It was pleaded that though the expenditure limit prescribed under Section 77 of the Act in an election for a Lok Sabha seat was Rs. 50,000/- the respondent had incurred the expenditure amounting to Rs. 2,42,50,000/-. The petitioner has given the details of the expenditure under various items including the use of the vehicles.
Section 123(6) of the Act is reproduced below:--
"123(6) -- The incurring or authorising of expenditure in contravention of Section 77." Section 77 of the Act provides as under:--
"77. Account of election expenses and maximum thereof-- (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.
Explanation 1. Notwithstanding any judg-
ment, order or decision of any court to the 'contrary, any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and "N shall not ever be deemed to have been, expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purposes of this sub-section:
Provided that nothing contained in this Explanation shall affect-
(a) any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the com mencement of the Representation of the People (Amendment) Ordinance, 1974 (Ord. 13 of 1974);
(b) any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordi nance if no appeal has been preferred to the Supreme Court against such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.
... ... ... ...
Explanation 3 -- For the removal of doubt, it is hereby declared that any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of Section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso' to that clause shall not be deemed to be expenditure in connection with the section incurred or authorised by a candidate or by his election agent for the purposes of this sub-section:
(2) The account shall contain such particulars, as may be prescribed.
(3) The total of the said expenditure shall not exceed such amount as may be prescribed."
52. It is not disputed that the election expenditure for a Lok Sabha seat prescribed under Section 77 of the Act is Rs. 1,50,000/-
53. A perusal of the provisions contained -in Section 77 of the Act would indicate that the candidate has to keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his agent between the date on which he has been nominated and the date of declaration of the result of the election. It would thus be seen that one of the essential ingredients of Section 77 is the incurring of expenditure between the date on which the candidate is nominated and the date on which the result is declared (both dates inclusive). Reading Section 77 with Section 123(6) of the Act, it will come out that the corrupt practice contemplated by Section 123(6) would arise only where the expenditure at the election in question was incurred in contravention of Section 77, namely, that between the date of his nomination and the date of the declaration of the result, the candidate had exceeded the limit of expenditure prescribed for the Lok Sabha seat.
54. In an election petition where a plea relating to the corrupt practice of incurring of the election expenditure in contravention of Section 77 is raised, the petitioner has necessarily to plead the material fact that the returned candidate whose election in question had incurred the election expenditure in excess of the prescribed limit between the date of the nomination and the date of the declaration of his result.
55. In Nongthombam Ibomeha Singh v. Leisangthem Chandramani Singh (AIR 1977 SC 682) the Supreme Court has held that the expenditure incurred in connection with the election prior to the date of nomination has to be excluded and need not be shown in the return of expenditure prepared under Section 77, of the Act. The Supreme Court had emphasised that the expenses incurred between the date on which the nomination paper was filed and the date of declaration of the result (both dates inclusive) alone has to be shown in the return.
56. In view of the above it was incumbent upon the petitioner to have pleaded in para20 of the petition that the expenses specified (herein were incurred by the respondent between the date of his nomination and the date of the declaration of the result (both dates inclusive). The petitioner has given the date of his own nomination but has not pieaded the date of respondent's nomination with the result that the most important ingredient of this corrupt practice has not been pleaded. The whole of para 20 together with its sub-paras beginning from (A) to (Q) have, therefore, to be ignored.
57. In sub-para (Q) the vehicles, which were doing election campaign of the respondent in Amethi, Gauriganj and Benipuron 16, 17 and 18th November, 1989, have been specified.
58. Apart from not giving the complete details of the vehicles, except a few, the petitioner has also not indicated that these vehicles were engaged by the respondent or that the respondent himself had incurred the expenditure of Rs. 3 lacs indicated in this para of the petition, for the cost of petrol, salary of drivers, the hire charges of vehicles, the salary of persons engaged for sitting in the vehicles and charges of loud speakers etc. etc.
59. It will be seen that under Section 77 of the Ac! the expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) cannot be treated to be an expenditure in connection with the election incurred or authorised by the candidate or by his election agent.
60. Where there is a provision made in Section 77 of the Act for the exclusion of expenses incurred by a political party or by any other association or body of person or even individuals, it becomes the duty of the petitioner challenging the election of the returned candidate on the ground of his having committed the corrupt practice under Section 123(6) to specify clearly that thej returned candidate had himself or his election] agent incurred the expenses.
61. The petitioner has pleaded that on 16th, 17th and 18th November, 1989 the vehicles specified in Clause (Q) of para 20 were doing election campaign of the respondent, but he has not said that the respondent himself had engaged those vehicles and that such vehicles had not been engaged by any political party or by any other association or body of persons or, for that matter, any other individual. The pleadings, therefore remain vague and do not disclose the cause of action in bringing the case within the clutches of Section 123(6) of the Act. The whole of para 20 of the election petition has, therefore, to be ignored.
62. In para 21 of the petition the petitioner has stated that Section 8-A of the Representation of the People Act was liable to be declared ultra vires of the Constitution and that the respondent Sri Rajiv Gandhi was liable to be disqualified for a period of six years, according to the earlier law.
63. Why Section 8-A of the Act is liable to be declared ultra vires has not been indicated. No foundation has been laid for such pleading nor has the petitioner indicated why is Section 8-A ultra vires of the Constitution.
64. In view of the above, paras 8 to 21 of the petition are liable to be struck off as being vague and containing indefinite pleas without disclosing the cause of action inasmuch as neither the material facts have been set out nor has the petitioner given the details and full particulars of the corrupt practice alleged by him to have been committed by the respondent.
65. The application of the respondent, namely, Civil Misc. Application No. 37(E) of 1990 is allowed and paras 8 to 21 of the petition are struck off. Since there remains nothing in the petition, the petition itself is dismissed at the threshold for not disclosing a cause of action.
66. The petition is dismissed with costs.
67. Petition dismissed.