V.M.Singh S/O Mander Singh vs Feroze Varun Gandhi

1. Heard Mr. M.N. Krishnamani, learned senior counsel assisted by Mr. Raghvendra Kumar Pandey for the petitioner and Mr. Keshari Nath Tripathi, learned Senior Counsel assisted by Mr. K.R. Singh for the Objector respondent.

2. The election petitioner Mr. V.M. Singh has filed the instant election petition to challenge the election of the respondent Mr. Feroze Varun Gandhi (the returned candidate) as a Member of the House of the People from 26- Pilibhit Constituency.

3. It is not in dispute that the respondent Mr. Feroze Varun Gandhi is the returned candidate belonging to Bhartiya Janata Party and the petitioner Mr. V.M. Singh is the nearest defeated candidate belonging to the Indian National Congress. The notification for the election was issued on 2.3.2009. The respondent filed his nomination on 22.4.2009. The date of poll was 13.5.2009. The respondent's election has been challenged with the allegations that he made speeches during the election campaign in different meetings and appealed for vote in the name of religion by creating animosity and hatred between Hindu and Muslim community. Speeches so made by the respondent can be divided into two categories. The first category of speeches dated 22.2.2009, 6.3.2009, 7.3.2009 and 8.3.2009 relate to the pre-nomination period. Post-nomination speeches made by the respondent have been referred to in para 30 of the election petition. In para 29, 30 and 38 of the election petition, it has been pleaded that hatred speeches made prior to the nomination were integral part of the general election and were telecast repeatedly by T.V. Channels from 17.3.2009 till the finalisation of the election on 16.5.2009.

4. The second ground for challenging the respondent's election petition is that his nomination was improperly accepted by the returning officer. It is alleged that the respondent's affidavit in form 26 and his affidavit regarding his assets were not signed nor sworn in by him before the Notary Public on 22.4.2009 at 12.10 PM and 12.20 PM at Pilibhit, because at that time, he had been addressing a public meeting in district Bareilly. The relevant facts relating to the affidavits have been referred to in paras 6K and 41 to 51 of the election petition and copies thereof have been filed as Schedule 20 to the election petition.

5. The respondent has moved three interlocutory applications, challenging the maintainability of the election petition. The first interlocutory application has been moved under section 86 (1) of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') mainly on the ground that he has not been furnished the copies of the documents referred to in paragraphs 19, 21, 23, 40 and 45 of the election petition. The said documents contain material facts with regard to the allegations of corrupt practice, therefore, it was obligatory in view of section 81(3) of the Act, on the part of the petitioner to supply true copies of the documents to the respondent. Since the petitioner has not supplied the documents, therefore, the election petition is liable to be dismissed under section 86 (1) of the Act.

6. The second interlocutory application has been moved under Order VI Rule 16 of the Civil Procedure Code (hereinafter referred to as 'the Code') read with section 86 (1) of the Act, mainly on the ground that the allegations made in paragraphs 6 to 40, 54 and 57 of the election petition do not contain material facts. The averments made in the election petition are frivolous and irrelevant in view of the reasons that the facts stated in the petition relate to the incidents/events prior to the filing of the nomination by the respondent, therefore, the allegations made in the election petition are neither relevant nor can be considered as material facts to constitute the corrupt practice within the meaning of section 100 and 123 of the Act. Paragraphs 6K and 41 and 51 of the election petition do not contain material facts relating to improper acceptance of respondent's nomination. As such paragraphs 6 to 51, 54 and 57 of the election petition are liable to be struck off under Order VI Rule 16 of the Code.

7. The third interlocutory application has been moved by the respondent under Order VII Rule 11 of the Code, mainly on the ground that the election petition does not disclose any cause of action, more so, the aforesaid paragraphs as also grounds A to J relate to the pre-nomination period when the deponent had not become a candidate within the meaning of section 100 and 123 of the Act. The allegations made in ground 'K' do not amount to any cause of action under section 100 (d) (1) of the Act. More so, the pleadings contained in the election petition are frivolous, unnecessary and irrelevant. Therefore the petition is liable to be rejected under Order VII Rule 11 of the Code.

8. The petitioner has filed counter affidavits against the aforesaid interlocutory applications. With regard to the interlocutory application moved under section 86 (1) of the Act, the petitioner has set up the case that the documents referred to in paragraphs 19, 21, 23, 40 and 45 of the election petition are not in his possession and therefore, he was not in a position to file the same with the election petition. He has annexed a list of such documents alongwith the election petition and has applied for summoning them by moving an application, therefore, the objection under section 86(1) of the Act has no merit and is liable to be dismissed.

9. With regard to the interlocutory application under Order VI Rule 16 of the Code, the petitioner has filed a detail counter affidavit stating that no doubt some of the facts pertain to the incidents/ events prior to the filing of the nomination by the respondent but the speeches and corrupt practices continued even after the nomination, therefore, they are relevant and can not be struck down at this initial stage. The petitioner further set up the case that the election of the respondent has been challenged also on the ground that the affidavits filed by him in support of the nomination were not sworn in before the Notary Public at the time mentioned in the affidavits in view of the fact that the respondent was busy in addressing an election meeting at that time and there was a telecast of that news on television, therefore, the allegations made in the election petition can not be said to be altogether irrelevant and frivolous. As such the application under Order VI Rule 16 of the Code is liable to be dismissed.

10. Keeping in view the facts and circumstances of the case and the submissions of the learned counsel for the parties, the following points arise for determination:

(1) Whether the pre-nomination speeches of the respondent neither constitute a corrupt practice nor disclose a cause of action and are liable to be struck off being unnecessary and irrelevant ?

(2) Whether the election petition is silent with regard to the material facts that the telecast of pre-nomination speeches by the Media was made with the consent, express or implied, of the respondent ?

(3) Whether the election petition relating to the post-nomination speeches of the respondent does not disclose material facts and is vague and ambiguous and does not constitute a cause of action or a corrupt practice ?

(4) Whether the election petition does not contain, material facts with regard to affidavits filed by the respondent in support of his nomination papers except two affidavits (Schedule 20) filed with one nomination paper only ?

(5) Whether non supply of copies of the documents or things referred to in paragraphs 19, 21, 23, 40 and 45 of the election petition amounts to non compliance of section 81(3) of the Act ?

(6) Whether the Election Petition is liable to be dismissed on the grounds stated in the interlocutory applications moved by the respondent ?

POINT NO. (1)

11. Mr. Keshari Nath Tripathi, learned senior counsel submitted that the speeches made by the respondent prior to his filing the nomination can not be taken as a relevant material to constitute a corrupt practice nor can be taken as relevant facts to constitute a valid cause of action to maintain the election petition. Mr. Tripathi further submitted that only post-nomination speeches are relevant for constituting the corrupt practice. In support of his submissions, Mr. Tripathi placed reliance on the following cases:

(i) Subhash Desai vs. Sharad J. Rao (1994) Supp. (2) SCC 446;

(ii) Mohan Rawale vs. Damodar, (1994) 2 SCC 392;

(iii) Chandrakanta Goyal vs. Sohan Singh, (1996) 1 SCC 378; and

(iv).Ramakant Mayekar vs. Celine D'Silva, (1996) 1SCC 399.

12. In the case of Subhash Desai (supra), the Apex Court, while considering the question of relevancy of pre-nomination speeches, held that the pre-nomination speeches are not relevant for the purposes of constituting a corrupt practice. The Apex Court further opined that a person becomes candidate at the election only on filing a nomination paper because section 79 (b) of the Act defines the term 'candidate' to mean a person who has been or claims to have been duly nominated as a candidate at any election. The Apex Court while propounding this principle, relied on its earlier decision in the case of Indira Nehru Gandhi vs. Raj Narain, 1975 Supp SCC 1, and held in para 18 as follows:

"18. On behalf of the appellant, it was then pointed out that in election petition, while alleging corrupt practices, reference has been made in respect of the speeches and publications, of period prior to 31-1-1990, which was the date when nomination papers were filed. The publications and speeches alleged to have been made prior to 31-1-1990 have to be ignored because the framers of the Act, required the High Court to judge the conduct of the candidate, his agent or persons with the consent of the candidate or his election agent, only after a person becomes a candidate for the particular election. A person becomes a candidate for the election in question only after filing the nomination paper. In this connection, reference may be made to Section 79(b) of the Act which defines 'candidate' to mean a person, who has been or claims to have been duly nominated as a candidate at any election. Section 34 of the Act says that a candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited the amounts prescribed in the said section. When a person becomes a candidate, was examined by this Court in the well-known case of Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1) and it was held:

"The 1951 Act uses the expression "candidate" in relation to several offences for the purpose of affixing liability with reference to a person being a candidate. If no time be fixed with regard to a person being a candidate it can be said that from the moment a person is elected he can be said to hold himself out as a candidate for the next election."

Recently, this Court in the case of Mohan Rawale v. Damodar Tatyabal has said:

"We hold that all the averments in paragraphs 1 to 20 of the memorandum of election petition insofar as they refer to a period prior to 23-4-1991 cannot amount to allegations of corrupt practice."

This cut-off date 23-4-1991 was fixed with reference to the date when nomination papers were filed by the appellant concerned, because since that date the appellant will be deemed to have legally acquired the status of a candidate. According to us, any allegation of corrupt practice against the appellant, made by the respondent in respect of the period prior to the filing of nomination by the appellant on 31-1-1990, cannot be taken into consideration for judging the legality or validity of his election."

13. The aforesaid principles have been reiterated in the case of Mohan Rawale (supra). The Supreme Court has made the following observations in para 6 and 8 of the judgment:

" 6. This, we are afraid, is not the correct perception of the matter. The view fails to take note of and give effect to the substitution of the definition of the expression "candidate" in Section 79(b). All sub-sections of Section 123 of the Act refer to the acts of a 'candidate' or his election agent or any other person with the consent of the candidate or his election agent. The substituted definition completely excludes the acts by a candidate up to the date he is nominated as a candidate. Shri Sanghi, therefore, asks us to take this position to its logical conclusions and strike out these allegations in the election petition.

8. We hold that all the averments in paragraphs I to 20 of the memorandum of election petition insofar as they refer to a period prior to April 23, 1991 cannot amount to allegations of corrupt practice. But on the question whether they are relevant and admissible for other purposes for the reasons submitted by Shri Nariman we abstain from expressing any opinion. This aspect did not engage the attention of the High Court and was not considered by it. It is for the High Court to consider them at the appropriate time. We, therefore, declare that the allegations in paras I to 20 relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice proprio vigore".

14. In the case of Chandrakanta Goyal (supra), the Apex Court while considering the relevancy of pre-nomination speeches followed its earlier verdict rendered in the case of Subhash Desai (supra) and opined that pre-nomination speeches made by any candidate can not form basis of any corrupt practice. A person becomes a candidate at the election on filing his nomination and not before that. The observations of the Apex Court made in para 3 of the judgment are being reproduced as follows:

"3. So far as the speeches of 29.1.1990 are concerned,there can be no doubt that the same have no relevance in the present context inasmuch as they were acts prior to the date on which the appellant became a candidate at the election. This being so, any speech made prior to the date on which she became a candidate at the election cannot form the basis of a corrupt practice by any candidate at that election since any act prior to the date of candidature cannot be attributed to her as a candidate at the election. For this reason, the learned counsel for the respondent rightly made no attempt to dispute this position. {See - Subhash Desai vs. Sharad J. Rao and Others : 1994 Supp.(2) SCC 446.}

15. In the case of Ramakant Mayekar (supra), the Apex Court again held that the pre-nomination speeches are irrelevant to form the basis of any corrupt practice and opined that relevant date is the date of nomination wherefrom the speeches of a candidate are considered relevant. While upholding this principle the Apex Court held in para 9 as follows:

"9. As for the speeches alleged to have been made on 29.1.1990, it may be stated at the outset that they have to be excluded from consideration since they cannot form the basis of any corrupt practice at the election, inasmuch as they relate to a period prior to the date on which Ramakant Mayekar became a candidate at the election as defined in Section 79(b) of the R.P. Act. This is the settled position in law. [See Subhash Desai vs. Sharad J. Rao and Others, 1994 Supp. (2) SCC 446; Indira Nehru Gandhi vs. Raj Narain, 1975 Supp. SCC 1; Mohan Rawale vs. Damodar Tatyaba, 1994 (2)SCC 392]."

16. Mr. M.N. Krishnamani, learned senior counsel for the petitioner on the other hand submitted that if it is held that pre nomination speeches of the respondent do not constitute corrupt practice, even then, such speeches, being hate speeches, could at least be relevant to corroborate the post nomination speeches. Mr. Krishnamani placed reliance on paras 8 and 9 (Paras 7 and 8 of S.C.C.) of the judgment of the Apex Court rendered in the case of Mohan Rawale (supra). In para 8 (Para 7 of S.C.C.) of the judgment, submissions of Mr. R.F. Nariman have been described. Mr. Nariman had contended that even if the allegations made in para 1 to 20 did not, by themselves, establish corrupt practice in law by virtue of their commission prior to the appellant becoming a candidate, these averments, and allegations must be read as pans of similar transactions pleaded in the later and subsequent paragraphs of the election petition. Mr. Nariman had further argued before the Apex Court that paragraphs 1 to 20 of the election petition could not be relevant if they could be sustained for the purpose of probalising or furnishing "similar-fact" evidence of the allegations of corrupt practice made in the later paragraphs of the election petition. The Apex Court did not agree with the submissions of Mr. Nariman and held in para 9 (Para 8 of SCC) that all the averments made in paragraphs 1 to 20 of the election petition in so far as they refer to a period prior to 23.4.1991 could not amount to allegations of corrupt practice. The Apex Court however, abstained from expressing any opinion regarding relevancy of pre nomination speeches for other purposes and left the same for consideration by the High Court at the appropriate time. In the case of Mohan Rawale (supra) the Apex Court has not expressed any opinion with regard to submissions of Mr. R.F. Nariman and very clearly held that pre-nomination allegations could not be relied upon to establish corrupt practice proprio vigore. No doubt the Apex Court while holding so left the question of relevancy of pre-nomination speeches for other purposes to be considered by the High Court. But the Apex Court did not express any opinion as to under what circumstances the pre-nomination speeches would be relevant for other purposes. When pre-nomination speeches do not constitute a cause of action or corrupt practice and are not relevant to challenge election of the returned candidate, I am unable to understand as to how such speeches would be relevant to corroborate the post nomination speeches. In my opinion the submission of the petitioner's counsel is devoid of merit.

17. The second submission on behalf of the petitioner was that the term "candidate" has been defined in section 79 (b) of the Act, according to which "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election and this definition is applicable for the purposes of Part VI and Part VII of the Act as this is evident from the words 'in this part and part VII' occurring in the beginning of definitions contained in section 79. The definition of "candidate" as given in section 79 (b) of the Act has to be given wider import for the purposes of section 123 of the Act so as to include also the period commencing from the date of notification issued by the election commission till the filing of the nomination and can not be restricted to the period commencing on and from the date of nomination only. The said definition has to be given effect keeping in view the context in which the term 'candidate' has been used in section 123 of the Act because the expression "unless the context otherwise requires" used in section 79 of the Act clearly supports the view that the definition of term 'candidate' in section 79 (b) of the Act is not static and can be modified suitably according to the context in which the term 'candidate' has been used. In support of this submission, Mr. Krishnamani, referred to the judgment of the Apex Court in the case of Indira Nehru Gandhi vs. Raj Narain & another, AIR 1975 SC 2299 and contended that in that case the Supreme Court, while scrutinising the effect of the amendment of section 123 (7) of the Act, expressed the view that the legislature was well within its right to determine a point of time prior to which any action of the candidate can not be deemed to be corrupt practice. The Apex Court further held that in absence of such a restriction any successful candidate would automatically become a candidate for the subsequent election after five years. According to Mr. Krishnamani, the Apex Court while making this observation, clarified that the definition of the word 'candidate' may be departed from, if there is something in the context to show that the definition should not be applied. In this connection, the learned counsel referred to paras 218 and 219 of the judgment rendered in Indira Nehru Gandhi (supra) which are as follows:

"218. ..........Reading the word "candidate" in Section 123(7) of the RP Act in the sense in which it has been defined as a result of the amendment made by Act 40 of 1975. I find that the only reasonable inference is that the person referred to as a candidate in that clause should be a person who has been or claims to have been duly nominated as a candidate at an election and not one who is yet to be nominated.

219. Mr. Shanti Bhushan has invited our attention to Clause (b) of Section 100(1) of the RP Act wherein it is stated that subject to the provisions of Sub-section (2) of the section if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void. "Returned candidate" has been defined in Clause (f) of Section 79 to mean, unless the context otherwise requires, a candidate whose name has been published under Section 67 as duly elected. It is urged that as the corrupt practice referred to in Clause (b) of Section 100(1) of the RP Act would in the very nature of things have to be committed by the returned candidate before his name was published under Section 67 as duly elected, the words "returned candidate" in Clause (b) of Section 100(1) must be taken to have been used with a view to identify the person who subsequently became a returned candidate. It is urged that if while dealing with corrupt practice committed by a candidate before he became a returned candidate in the context of Section 100(1)(b), it is permissible to hold that the words "returned candidate" are intended to identify the person who subsequently became a returned candidate, the same criterion should apply when construing the word "candidate" in Section 123 of the RP Act. This contention, in my opinion, is devoid of force. The definition of the words "returned candidate" and "candidate" given in Section 79 of the RP Act are preceded by the words "unless the context otherwise requires". The connotation of the above words is that normally it is the definition given in the section which should be applied and given effect to. This normal rule may, however, be departed from if there be something in the context to show that the definition should not be applied. So far as Clause (b) of Section 100(1) is concerned, the context plainly requires that the corrupt practice referred to in that clause should have been committed by the candidate before he became a returned candidate, or by his agent or by any other person with his consent or that of his election agent. The compulsion arising from the context which is there in Clause (b) of Section 100(1) of the RP Act is singularly absent in Section 123(7) of the RP Act. There is nothing in the context of the latter provision which requires that we should not give full effect to the new definition of the word "candidate".

18. Mr. Krishnamani continued to argue that the Apex Court in the case of Indira Nehru Gandhi (supra) had inter alia, examined the constitutional validity of the Election Laws (Amendment) Act, 1975 and introduced the new definition of the word "candidate". In fact, the Apex Court examined the validity of the aforesaid Act in the light of the provisions of section 123(7) of the Act alone, which is apparently clear from para 234 of the judgment, which reads as follows:

"234. Reference was also made by Mr. Shanti Bhushan to the effect of retrospective amendment in cases which may arise under Section 123(1) of the RP Act. We are in the present case not concerned with Section 123(1) of the RP Act......... ."

19. Keeping in view section 123 (7) of the Act, the Apex Court was of the view that the aforesaid amendment was constitutional as the Parliament had powers to enact such laws. According to Mr. Krishnamani, the ratio behind this conclusion has been given in para 385 of the judgment, which reads as follows:

"385. The legislature must fix some point of time before which a person cannot be a 'candidate' in an election, and, a wide latitude must be given to the legislature in fixing that point. In Union of India v. Parameswaran Match Works, Civil Appeals Nos. 262-273. 587-591 and 1351-1402 of 1971 and 1883-1921 of 1972, D/- 4-11-1974 - () this Court observed:

The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or point there must be, and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark. See Louisville Gas Co. v. Alabama Power Co. 240 US 30 at p. 32 per Justice Holmes."

20. On the basis of the aforesaid observations of the Apex Court, Mr. Krishnamani submitted that in section 123 (7) of the Act it is difficult to ascertain whether the listed acts would be for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate irrespective of the fact that they were carried out prior to a particular point in time, therefore, the Act as well as the verdict of the Apex Court explicitly reveal that the date of nomination can serve as an effective benchmark to determine whether the act constitutes a corrupt practice or not. The same is also true for section 123 (6) of the Act among others.

21. It was next submitted by the learned senior counsel appearing for the petitioner that a strict interpretation of section 79 (b) of the Act would in fact render some of the provisions of the Act as unenforceable and due to this reason the Apex Court observed in para 219 of the judgment rendered in Indira Nehru Gandhi's case (supra) that the definition may, however, be departed from if there be something in the context to show that the definition should not be applied. Mr. Krishnamani referred to the provisions of section 123 (3), section 123 (3A) and section 123 (1)(A)(a) of the Act and contended that if it is held that a person becomes candidate mere on filing a nomination only, the provisions of these sections would become unenforceable. According to the learned counsel, section 123 (1)(A)(a) of the Act clearly prohibits candidates from giving bribe to a person either to stand or not to stand as a candidate in the election, therefore, if the definition of the "candidate" as provided in section 79(b) of the Act is applied, in that eventuality, section 123 (1)(A)(a) of the Act would become ineffective. Mr. Krishnamani further submitted that there is another reason which makes the position clear that the term "candidate" in section 79 (b) cannot apply to the allegations arising out of section 123 (3) and section 123 (3A) of the Act. The whole object of these provisions is that a candidate should not indulge in hate speeches or communal attacks in order to injure the sentiments of any sect or to induce and infuse feeling of hatred in another community in order to polarise people in his favour by creating communal hatred. Therefore, a candidate can not be held to be justified to make hatred and communal speeches even about one minute before filing his nomination. The hate pre nomination speeches by which a person has already been done the mischief and damage prevented by section 123 (3) and section 123 (3A) of the Act would go scot free if the literal definition of "candidate" given in section 79(b) of the Act is given effect to and in that eventuality, he would be able to gain benefits by such hate speeches in his election prospects. It was also submitted on behalf of the petitioner that the object of section 123 (3) and section 123 (3A) of the Act is also to prevent other candidates fighting the election from being put to grave loss and prejudice on account of such hate speeches. The respondent's object all along before and after the filing of the nomination was to consolidate Hindu votes by targeting Muslims and Sikhs by hurling venouoness, vituperative and vulgar attacks on them. In such a context the narrow definition of "candidate" would work havoc and defeat the very object of the aforesaid sections. In the backdrop of these contexts, Mr. Krishna Mani submitted that the definition of the term "candidate" as contained in section 79(b) of the Act includes not only a person who becomes a candidate on filing nomination but also a person who is an "would be candidate".

22. The learned counsel for the petitioner further submitted that the principles laid down in the cases of Subhas Desai (supra), Mohan Rawale (supra), Chandrakanta Goyal (supra) and Ramakant Mayker (supra) have not laid down any law and are not binding precedents. In these cases, the principles being relied upon by the counsel for the respondent were propounded only on the concession granted by the counsels. Mr. Krishna Mani referred to para 8 of the judgment in Mohan Rawale's case (supra), para 3 of the Chandrakanta Goyal's case (supra) and para 9 of the judgment in Ramakant Mayker's case in support of his submissions. In other words, submissions of the counsel for the petitioner was that in all the aforesaid three cases the Apex Court has not laid down any law. Whatever observations have been made, they have been made by way of concession, therefore, the decisions are not binding judicial precedents. Mr. Krishnamani proceeded further to argue that a counsel has no right to concede on a question of law so as to bind his client. In any event, the Apex Court in multiple cases, held that any decision passed on a point that has been either conceded by one party or mutually agreed to by both the parties, can not be deemed to be a binding precedent. In the case of Uptron India Ltd. vs. Shammi Bhan (1998) 6 SCC 538 the Apex Court has observed in para 23 of the judgment that ".... Even otherwise, a wrong concession on a question of law, made by a counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent." This view has been reiterated by the Apex Court in the case of Commissioner of Central Excise, Chennai-I vs. ITC Ltd. (2006) 13 SCC 795 and Rajbir Singh Dalal vs. CDL University Sirsa and another, (2008) 9 SCC 284. It was next submitted that the case laws cited by the learned counsel for the respondent being contrary to the analogy of section 123 of the Act as well as the decision rendered in the Indira Nehru Gandhi's case (supra), are per incuriam.

23. Before entering into merits of the aforesaid submissions of the learned counsel for the parties, it seems to be just and expedient to see as to how the present definition of the term "candidate" was brought on the statute book. After the judgment of this Court in the case of Raj Narain vs. Indira Nehru Gandhi (rendered by Hon'ble Jagmohan Lal Sinha,J.), the Parliament made exhaustive amendment in the Representation of People Act by The Election Laws (Amendment) Act, 1975 (Act No. 40 of 1975), (hereinafter referred to as 'the Amending Act') and amended the definition of the term "candidate" with retrospective effect. Before the amendment, the term "candidate" had wider import, and according to that, a person used to be considered as a "candidate" even prior to his filing the nomination. The pre amended definition of the term "candidate" as defined in section 79 (b) of the Act, was as follows:

"79. In this Part and in Part VII, unless the context otherwise requires,-

(a)........

(b) a candidate means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time, with the election in prospect, he began to hold himself out as a prospective candidate."

24. Therefore, according to pre-amendment definition, "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election and any such person was being deemed to have been a candidate not only from the date of his nomination but also as from the time, with the election in prospect, he began to hold himself out as a prospective candidate.

25. By the amending Act, the words and expressions "and any such person shall be deemed to have been a candidate as from the time, with the election in prospect,he began to hold himself out as a prospective candidate" were deleted from section 79 (b) of the Act. Consequently the following definition, which is operative since then, was incorporated in section 79:

"79. In this Part and in Part VII unless the context otherwise requires,-

(a)........

(b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election;"

26. The validity of the Amending Act was challenged before the Constitution Bench of the Apex Court in the case of Indira Nehru Gandhi vs. Raj Narain (supra), which was an appeal against the aforesaid judgment of this Court and the Apex Court upheld the amendment and held that after the commencement of the Amending Act, the question as to when a person holds himself out as a candidate, therefore,lost its importance in the context of new definition. No doubt in paras 384 and 385 of the judgment rendered in Indira Nehru Gandhi's case (supra) the Apex Court observed, as submitted by Mr. Krishnamani, that the legislature must fix some point of time before which a person can not be a candidate in an election, and a wide latitude must be given to the legislature in fixing that point, but from this observation it can not be inferred that the Apex Court allotted some date other than the date of nomination under the amended law as the date on which a person becomes a candidate in an election. In fact the Apex Court made the aforesaid observations while considering the power of the legislature to make the amendment fixing the date of nomination as the date for commencement of candidature of a person in an election instead of the date of such commencement under the unamended law. Therefore, the aforesaid observations do not support the petitioner's case. It may also be mentioned that the Apex Court, after considering the pros and cons of the Amending Act and pre-amendment position of section 79(b) of the Act, very specifically held that a returned candidate becomes candidate only on the date of filing his nomination paper. The Apex Court further observed that uncertainty had been removed by the amendment, therefore, the amended definition of the term "candidate" was made applicable in Indira Nehru Gandhi's case.

27. It is no doubt true that the definition of the term "candidate" given in section 79 of the Act is preceded by the words "unless the context otherwise requires" but the term "unless the context otherwise requires" has a relevance only when the context requires otherwise. Normally it is the definition given in the section should be applied and given effect to but this normal rule may be departed from if there be something in the context to show that the definition should not be applied. In the case of Indira Nehru Gandhi (supra) the Apex Court, while considering the words "unless the context otherwise requires" for finding out the correct meaning of the term "candidate" for the purposes of section 100(1) and section 123 of the Act, has very clearly held that there is nothing in the context which requires that full effect of the definition "candidate" should not be given. While following the ratio of Indira Nehru Gandhi's case, the Apex Court, in the cases of Subhash Desai. Chandrakanta Goyal, Ramakant Mayker and Mohan Rawale, very clearly held that the speeches relating to the period anterior to the commencement of the candidature could not be relied upon to establish corrupt practice proprio vigore. In all the aforesaid cases, the Apex Court has explicitly held that the relevant date is the date of the nomination where-from a candidate has been made responsible for a corrupt practice committed by him or his election agent or by any other person with his consent or with the consent of his election agent. The acts, omissions and speeches made by a candidate prior to his nomination has been held by the Apex Court in the aforesaid cases as irrelevant for constituting a cause of action or a corrupt practice and this is the law declared by the Apex Court and it is incorrect to say that the Apex Court laid down this law due to any concession of any of the counsel. In my considered opinion, the law declared by the Apex Court in the cases Indira Nehru Gandhi, Subhas Desai, Mohan Rawale, Chandrakanta Goyal and Ramakant Mayker are judicial precedents within the meaning of Article 141 of the Constitution of India and is binding on this Court. The grounds on which basis Mr. Krishnamani tried to contend that the aforesaid decisions do not come within the category of judicial precedents, do not appear to be tenable nor can be taken into account to surpass the decisions of the Apex Court. So far as the submission of Mr. Krishnamani that the term "candidate" as defined in section 79(b) of the Act has a different meaning for the purposes of section 123 (3) and 123 (3A) of the Act is concerned, it has also no substance. According to section 123 (1)(A)(a) of the Act giving of bribe to any person with the object, directly or indirectly, of inducing a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate in an election, is a corrupt practice. Mr. Krishnamani tried to submit that the expression "a person to stand or not to stand as ........a candidate at an election", occurring in section 123(1)(A)(a) of the Act clearly indicates that a person becomes a candidate even prior to his filing nomination paper. In my opinion, this submission does not appear to have any merit. Section 123 (1)(A)(a) of the Act contemplates existence of at least two persons, one who gives or offers to give the bribe, and the other, to whom the bribe is given or offered to be given. According to section 123 (1)(A), the bribe giver must be a candidate and to whom the bribe is given or offered may or may not be a candidate. The liability of corrupt practice, according to section 123 (1)(A) of the Act is on the candidate, his agent or any other person who acts with the consent of the candidate or his election agent and not on the person who is induced to stand or not to stand as a candidate, therefore, the line of reasoning submitted by Mr. Krishnamani for giving a different meaning to the term 'candidate' for the purposes of section 123 and 100 of the Act being contrary to the settled principles, has no legal support (judicial precedent). In fact what Mr. Krishnamani is trying to argue, is to restore the pre-amendment definition of the term "candidate", which after the commencement of the Amending Act, is not permissible in law specially when the Apex Court in the aforesaid decisions and in so many other decisions, propounded the date of nomination as the relevant date for the commencement of candidature of a person in an election and excluded his pre-nomination speeches etc.

28. Therefore, I am of the view that the pre-nomination speeches of a candidate have no relevance to constitute a corrupt practice within the meaning of section 100 and 123 of the Act. More so, they do not even disclose a cause of action to maintain an election petition against the returned candidate. Point no.1 is accordingly disposed of.

POINT NO. (2)

29. With regard to this point, Mr. K.N. Tripathi submitted that the petitioner, on the basis of the pleadings contained in paras 29, 30 and 38 of the election petition, has tried to contend that the pre-nomination speeches were repeatedly telecast from 13.3.2009 till the finalisation of the result of the election on 16.5.2009, therefore,the pre-nomination speeches are relevant to constitute the corrupt practice. But neither in para 29 nor in para 38 of the election petition nor elsewhere in the entire election petition, the petitioner has pleaded that the pre nomination speeches made by the respondent were telecast by various channels with the consent of the respondent, therefore, the telecast so made can not be treated as a ground to constitute a corrupt practice or a cause of action against the respondent. More so, the averments made in paras 29, 30 and 38 of the election petition with regard to the telecast of pre nomination speeches are also vague and indefinite. The names of TV channels, date and time of telecast and exact speeches that were telecast, have not been disclosed in the election petition. Paras 24, 25 and 26 of the election petition disclose pre nomination telecast of respondent's speeches, as such they are not at all relevant. It was next submitted that in absence of respondent's consent for the telecast, it can not be held that the respondent was responsible for the telecast. It was next submitted that knowledge or connivance is not consent in the Election Law and even question of implied consent does not arise in such matters. Mr. K.N. Tripathi, in support of his submissions, placed reliance on the following cases :

(i) Chandrakanta Goyal vs. Sohan Singh, (1996) 1 SCC 378; and

(ii)Charan Lal Sahu vs. Giani Zail Singh, AIR 1984 SC 309).

30. In the case of Chandrakanta Goyal vs. Sohan Singh, (supra) the apex Court while considering the question of relevancy of a corrupt practice committed by any other person for the returned candidate, propounded the principle that the act amounts to a corrupt practice must be done by a candidate or his agent or by any other person with the consent of a candidate or his election agent and the consent of the candidate or his election agent must be pleaded and proved and held in paras 8 and 9 as follows:

"8. .................. The only surviving allegations relate to speeches made by some leaders of the political parties for which even the High Court has not recorded a clear finding of appellant's consent thereto and the High Court has merely said that the consent may be implied from the fact that the makers of the speeches were leaders of the political party.

9. As an abstract proposition of law it cannot be held that every speech by a leader of a political party, who is not an agent of the candidate set up by the party, is necessarily with the consent of the candidate set up by that party to make it superfluous to plead and prove the candidate's consent, if that speech otherwise satisfies the remaining constituent parts of a corrupt practice. The act amounting to a corrupt practice must be done by ''a candidate or his agent or by any other person with the consent of a candidate or his election agent'. A leader of a political party is not necessarily an agent of every candidate of that party. An agent is ordinarily a person authorised by a candidate to act on his behalf on a general authority conferred on him by the candidate. Ordinarily, the agent is the understudy of the candidate and has to act under the instructions given to him, being under his control. The position of a leader is different and he does not act under instructions of a candidate or under his control. The candidate is held to be bound by acts of his agent because of the authority given by the candidate to perform the act on his behalf. There is no such relationship between the candidate and the leader, in the abstract merely because he is a leader of that party. For this reason, consent of the candidate or his election agent is necessary when the act is done by any other person. Thus, even in the case of a leader of the party, ordinarily, consent of the candidate or his election agent is to be pleaded and proved, if the election of the candidate is to be declared void under Section 100(1)(b) for the corrupt practice committed by the leader."

31. In the case of Charan Lal Sahu v. Giani Zail Singh (supra), a Constitution Bench of the Apex Court reiterated the aforesaid principles and held that in absence of a pleading that the act of undue influence was committed with the consent of the returned candidate, one of the main ingredients would remain unsatisfied, therefore, the facts constituting the consent of the returned candidate must be specifically pleaded. Paras 29 to 31 of the judgment being relevant on the question, are being reproduced as follows:

"29. Section 18(1) (a) of the Act which we have already set out, provides that the Supreme Court shall declare the election of the returned candidate to be void if it is of opinion-

"that the offence of bribery and undue influence at the election has been committed by the returned candidate or by any person with the consent of the returned candidate."(emphasis supplied).

We may keep aside the question of bribery since there is no allegation in that behalf. Nor is it alleged that the offence of undue influence was committed by the returned candidate himself. The allegation of the petitioners is that the offence of undue influence was committed by certain supporters and close associates of Respondent 1 with his connivance. It is patent that this allegation, even if it is true, is not enough to fulfil the requirements of section 18(1) (a). What that section, to the extent relevant, requires is that the offence of undue influence must be committed by some other person with the "consent" of the returned candidate. There is no plea whatsoever in the petition that undue influence was exercised by those other persons with the consent of Respondent 1.

30. It is contended by Shri Shujatullah Khan who appears on behalf of the petitioners, that connivance and consent are one and the same thing and that, there is no legal distinction between the two concepts. In support of this contention, learned counsel relies upon the meaning of the word 'connivance' as given in Webster's Dictionary (Third Edition, Volume 1, p. 481); Random House Dictionary (p. 311); Black's Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8A, p. 173); and Corpus Juris Secundum (Volume 15A, p. 567). The reliance on these dictionaries and texts cannot carry the point at issue any further. The relevant question for consideration for the decision of the issue is whether there is any pleading in the petition to the effect that the offence of undue influence was committed with the consent of the returned candidate. Admittedly, there is no pleading of consent. It is then no answer to say that the petitioners have pleaded connivance and, according to dictionaries, connivance means consent. The plea of consent is one thing: the fact that connivance means consent (assuming that it does) is quite another. It is not open to a petitioner in an Election Petition to plead in terms of synonyms. In these petitions, pleadings have to be precise, specific and unambiguous so as to put the respondent on notice. The rule of pleadings that facts constituting the cause of action must be specifically pleaded is as fundamental as it is elementary. 'Connivance' may in certain situations amount to consent, which explains why the dictionaries give 'consent' as one of the meanings of the word 'connivance'. But it is not true to say that 'connivance' invariably and necessarily means or amounts to consent, that is to say, irrespective of the context of the given situation. The two cannot, therefore, be equated. Consent implies that parties are ad idem. Connivance does not necessarily imply that parties are of one mind. They may or may not be, depending upon the facts of the situation. That is why, in the absence of a pleading that the offence of undue influence was committed with the consent of the returned candidate, one of the main ingredients of section 18(1) (a) remains unsatisfied.

31.The importance of a specific pleading in these matters can be appreciated only if it is realised that the absence of a specific plea puts the respondent at a great disadvantage. He must know what case he has to meet. He cannot be kept guessing whether the petitioner means what he says, 'connivance' here, or whether the petitioner has used expression as meaning 'consent'. It is remarkable that, in their petition, the petitioners have furnished no particulars of the alleged consent, if what is meant by the use of the word connivance is consent. They cannot be allowed to keep their options open until the trial and adduce such evidence of consent as seems convenient and comes handy. That is the importance of precision in pleadings, particularly in election petitions. Accordingly, it is impermissible to substitute the word 'consent' for the word 'connivance' which occurs in the pleadings of the petitioners."

32. The learned counsel for the petitioner, in reply, submitted that adequate pleadings with regard to the telecast of the respondent's pre nomination speeches by TV channels and electronic media have been made in paragraphs 29 and 38 of the election petition. Paras 29 and 38 of the election petition, if taken into account, disclose the respondent's implied consent. Paragraphs 29 and 38 of the election petition are being reproduced as follows:

"29. The hate speeches of Mr. Feroze Varun Gandhi were the integral part of the General Elections and were telecast repeatedly from 13.03.2009 till the final results of the elections were declared on 16.05.2009, whether when Mr. Feroze Varun Gandhi went to the Delhi High Court on 19.03.2009 to seek bail or when the Allahabad High Court that dismissed his petition for quashing the FIR or when the Delhi High Court permitted him to withdraw his petition that had become infructuous in the light of the Allahabad High Court order or when he went to Pilibhit to surrender or when he was lodged in Pilibhit jail or when the NSA was slapped on him on 29.03.2009 or when he was shifted to Etah jail as well as approached the Supreme Court on 01.04.2009 or when the Supreme Court granted him parole or when he was released on parole and went back to Delhi on 16,.04.2009 or when he came to Pilibhit to file his nomination on 32.04.2009 or while he was campaigning in Pilibhit or elsewhere, these hate speeches were also shown as the background to the latest events that were being telecast."

"38. On account of the poisonous election speeches given by Mr. Feroze Varun Gandhi, the electronic media also played up the same and in fact, the Varun Gandhi hate speeches were given prominence and were repeatedly telecast on all the national news channels and dominated all the other issues in the entire elections.

Not only this, even the print media of Pilibhit, both Amar Ujala and Dainik Jagran, Pilibhit Editions, were obsessed by the hate speeches and he was prominently written about by the print media only for the hate speeches and issues connected to it, like his going to jail etc. While he was permitted to have home food and was having the same, the media made their stories sensational by writing that how he had to eat stale and dry chappatis and how he was made to sleep on the floor on torn 'darri's'. In order to ensure that he gains public sympathy, he was continuously shown as some one who had been wronged. There was absolutely no mention of the development of the area that was done by his mother in the last 20 years or what he intended to do in the next five years. The electronic media followed him in their OB Vans everywhere, which gave him an edge over his opponents in terms of publicity. The newspapers saw that the story of minority bashing by Mr. Feroze Varun Gandhi increased their sales, so they continued with this agenda right through the elections and had a major hand in further provoking the sentiments of the Hindus and went on to polarize the Hindu vote bank."

33. Learned counsel for the petitioner further submitted that according to the aforesaid paragraphs of the election petition the hate speeches were continuously shown/telecast by the Electronic Media till the voting date and thus, such speeches continued to remain fresh in the mind of the voters, therefore, the respondent took wilfully advantage of the same by not issuing any notice to the Media to stop the telecast. Rather he quietly allowed such repeated telecasts since it suited him, therefore, the telecast was made with his implied consent. The Apex Court, in the case of Laxmi Narain vs. Returning Officer, 1974 (3) SCC 425 while dealing with the corrupt practice under section 123 of the Act, has made abundantly clear that "consent" can be inferred from the circumstances. According to the learned counsel, the continued broadcast/telecast of the pre nomination speeches of the respondent after the date of nomination till the finalisation of the election, does constitute a corrupt practice, therefore, the pre nomination speeches of the respondent have relevance not only for constituting a "cause of action" but also for constituting a "corrupt practice" within the meaning of section 123 of the Act.

34. The learned counsel for the petitioner tried to contend further that the pre-nomination speeches of the respondent remained alive after the respondent's nomination on account of publication and telecast of such speeches respectively by print media and various TV channels, and the respondent, on account of such publication and telecast, was ultimately benefited in his election. In my opinion according to section 100 (1)(b) of the Act, election of the returned candidate can be declared void only when any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Therefore, it is obligatory on the part of the election petitioner to plead material facts relating to such consent of the returned candidate or his election agent. It may also be mentioned that there is not even a single word in para 6K, 29 and 38 of the election petition or elsewhere in the election petition that such telecast and publication had been made with the consent express or implied, of the respondent or his election agent. In absence of such material facts in the election petition, the petition will be contrary to section 83 (1)(a) of the Act, therefore, liable to be dismissed. In the cases of Chandrakanta Goyal and Charan Lal Sahu, the Apex Court has held that the act or omission of any person does not bind a candidate unless it was done with the consent express or implied of the candidate or his election agent, therefore, it was necessary for the petitioner to plead the consent of the respondent or his election agent in the election petition specifically in clear terms. In absence of any specific plea on this point, it can not be inferred from the contents of the election petition that the petitioner has at least set up a case of implied consent. Mr. Krishnamani tried to submit that the respondent did not come forward to prohibit the media for publishing or telecasting his pre nomination speeches during the post nomination period, therefore, the publication and the telecast were made with the respondent's implied consent and this inference can be drawn from the election petition without there being any specific plea on this point. In my opinion the factual position is otherwise. On a careful perusal of the election petition, it is abundantly clear that the petitioner has nowhere pleaded that the respondent, despite coming to know the publication and telecast of his pre nomination speeches in the aforesaid manner, did not lodge any protest nor gave any notice to the media for stopping the publication and telecast. In absence of this plea, it can not be contended that the petitioner has set up the case of consent of the respondent regarding the publication/telecast of his pre nomination speeches in the aforesaid manner by the media.

"30. It would not be out of place to say that these hate speeches were given more news time on every channel's telecast during the General Elections as compared to any other issue or agenda. Because of this reason, the hate speech of 7th and 8th March, 2009 remained fresh in the minds of the electorate of Pilibhit and finally it is on account of these speeches that the Hindu votes polarized in favour of Mr. Feroze Varun Gandhi and against the petitioner and other candidates. That even after his release from jail on parole, Mr. Feroze Varun Gandhi in his meetings continued with his hate speeches, but with a difference. He said in village Chandiya Hazara, Puranpur as well as in other villages of Barkhera in the first week of May that he was bound by the affidavit that he had given in the Supreme Court to mark his words but, he continued with his dialogues instead of the earlier statements 'jo haath hindu ke upar uthega us haath ko Varun Gandhi kaat dalega', he would say 'jo haath hindu ke upar uthega us haath ko' and his supports would repeat the balance in chorus 'Varun Gandhi kaat dalega'. This was broadcast by various channels including NDTV and STAR News which were covering Mr. Feroze Varun Gandhi's campaign live. In fact NDTV showed the same in their introductory montage of the coverage of the election results on 16.05.2009. The petitioner seeks liberty of this Hon'ble Court to summon the said tapes from the channels. "

37. Mr. K.N. Tripathi submitted that the averments made in para 30 of the election petition are vague, indefinite and tend to embarrass a fair trial of the petition. More so, the petitioner has himself disclosed in para 30 of the petition that alleged post nomination speeches were different from the pre nomination speeches but the petitioner has not disclosed the contents, words and expressions of the alleged speeches, therefore, the court is not in a position to ascertain as to whether or not the post nomination speeches amount to a corrupt practice. Mr. Tripathi next submitted that it is nowhere pleaded in the election petition that the respondent made any appeal to vote for him on the ground of religion, race, caste and community etc. or to refrain from voting for any person on the said ground. It is also nowhere pleaded that said speeches were for the furtherance of the prospects of the election of the respondent or the same prejudicially effected the election of any other candidate, therefore, requirements of section 123 (3) and section 123 (3-A) of the Act have not been fulfilled. Mr. Tripathi further submitted that mere the averment that the respondent continued with his hate speeches but with a difference does not amount to disclosure of material facts constituting a corrupt practice. The petitioner's own admission is that post nomination speeches were different from earlier so called hate speeches but the petitioner nowhere specified as to which part of the earlier speeches continued during the post nomination period. Mere using the expression "hate speech" does not amount to corrupt practice as the said expression has not been made one of the essential ingredients to constitute a corrupt practice. The petitioner has not disclosed the date, time and place where the meeting was allegedly held at villages Chandia Hazara and Pooranpur. He has also not disclosed the names of other villages of Barkheda where meetings were allegedly held. The date, time and place of meetings have also not been mentioned. The expression "first week of May" made in para 30 of the election petition is too vague and general, therefore, it is of no help to the petitioner. In support of his submissions Mr. K.N. Tripathi placed reliance on the following cases:

(I) Azhar Hussain vs. Rajeev Gandhi, AIR 1986 SC 1253;

(ii) Har Narain vs. Vinod Kumar, AIR 1987 All 319;

(iii) Hardwari Lal vs. Kanwal Singh, AIR 1972 SC 515;and

(iv) Daulat Ram vs. Anand Sharma, AIR 1984 SC 621;

38. In the case of Azhar Hussain (supra), the Apex Court while considering the question of essential ingredients of the corrupt practice gave stress on the date, time and place of the speeches and held as follows:

"25. In this case also, no time, date and place of the speeches delivered by the respondent have been mentioned. No exact extracts from the speeches are quoted. Nor have the material facts showing that such statements imputed to the respondent were indeed made been stated. No allegation is made to the effect that it was in order to prejudice the election of any candidate. Or in order to further the prospects of the election of the respondent. The essential ingredients of the alleged corrupt practice have thus not been spelled out. So far as the meeting is concerned, the principle (1) laid down in Nihal Singh's case (supra) discussed in the context of the charge contained in ground (Il)(i) is attracted. The view taken by the High Court is therefore unexceptionable."

39. In the case of Har Narain (supra) this Court while considering the question of existence of cause of action with regard to charge of corrupt practice propounded the principle that petitioner must state to the precision of the details including the details of time, place and names of voters, nature and manner of the threat extended to them and the actual words and expressions used for giving threat to the voters and observed as under:

"10. ........The material facts are those facts which can be considered as material supporting the allegations made. In other words, they must be such facts as to afford basis for the allegations, made in the petition. (Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276). S. 83 of the Act, 1951 is mandatory and requires the election petition to contain first a concise statement of material facts and then require the fullest possible particulars. The word, "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material act leads to an incomplete cause of action and the statement of claim becomes bad. (Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201).

11. ....... In the case of Hardwari Lal (supra) which also involved a charge of corrupt practice, it was held that an election petition which merely alleges corrupt practice against successful candidate of obtaining or procuring or attempting to obtain or procure the assistance of certain named Government Servants in the furtherance of the prospect of his election by writing letters under his own signature without giving material facts and the necessary particulars as to the nature of the assistance the time and place where it was sought from each of the persons mentioned does not furnish any cause of action and it is no election petition in the eye of law. It, therefore, follows that time and place constitute material facts and they have to be disclosed to present a full picture of cause of action like other material facts. In Daulat Ram Chauhan v. Anand Sharma, AIR 1984 SC 621, their Lordships adverting to material facts of corrupt practice observed : --

'We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other- serious consequences like disbarring the candidate concerned from contesting a future election for a period of six years, the allegation 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 practices alleged were indulged in by (a) the candidate himself (b) his authorised election agent or any other person with his express or implied consent'.

12. From the above rule, it is abundantly clear that for giving a cause of action with regard to a charge of corrupt practice, the petitioner must state to the precision of the details including the details of time, place, names of voters, who were terrorised, use of words and expressions for extending threat and the nature and manner of the threat extended Similar rule has been reiterated in the latest decision Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 by the Supreme Court I, therefore, do not agree with Sri Dwivedi that the details of polling stations, names of voters, nature and manner of threat, actual words used for extending threat constitute merely particulars that can be furnished later, and not the material facts which must be stated in the petition to give a full picture of the cause of action. From the above decisions of the Supreme Court, it is abundantly clear that the petitioner will have to furnish all these details to give a complete picture of cause of action for the charge of corrupt practice and that he cannot be permitted to make up this deficiency good either by way of amendment on the ground that they merely constitute 'particulars' that can be furnished during the trial either by adducing evidence or in the petition by amendment suo motu or at the direction of the court. The disclosure of all these details in the petition at the very inception is mandatory and the petitioner cannot be permitted to furnish these details, later either suo motu or under the direction of the court. It is precisely here that the order dt. 13-12-1985 went wrong. The proviso to Clause (c) of Sub-section (l) of Section 83 of the Act, 1951 Is also a pointer that the petitioner while raising a charge of 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. The disclosure of all the material facts including the details relating to time, place, names of voters, nature and manner of threat extended to them, the actual words and expression used for giving threat, the fact of explicit or implied consent and the details of talks held between the respondent, his father and the polling agents in the petition right from inception was essential and the Court directing the petitioner vide order dt. 13-12-1985 to furnish all these details did some thing, which is not permitted by the case law, stated hereinbefore. If all these facts are not stated in the petition then it would be liable to be rejected straightway under Order 7, Rule ll(a) CP.C The law does not permit to inject a life in a dead petition by inserting the material facts and furnishing cause of action thereby. Continuance of the trial sans cause of action would amount to an abuse of process of the court within the meaning of Section 151 CP.C and, therefore, the court is fully empowered to exercise inherent powers to set right the wrong by recalling the order dt. 13-12-1985."

40. In the case of Hardwari Lal (supra) the Apex Court reiterated the aforesaid principles and observed in para 18 as under :

".....It is, therefore, apparent that the appellant who was charged by the election petitioner with corrupt practice should be told in the election petition as to what assistance he sought. The type of assistance, the manner of assistance, the time of assistance, the person from whom assistance is sought are all to be set out in the petition about the actual and the specific assistance with which the appellant can be charged in violation of the provisions of the Act. Nor is there any statement in the election petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered........".

41. In the case of Daulat Ram Chauhan (supra) the Apex Court held that the election petition must be so clear and specific that the inference of corrupt practice irresistibly admits of no doubt or qualm and further held that where the allegations of fraudulent practice is open to two equal possible inferences, the pleadings of corrupt practice must fail. The relevant portion of the observations made in para 18, 19 and 20 of the judgment are reproduced as follows:

"18. ........... 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 practices alleged were indulged in by (a) the candidate himself (b) his authorised election agent or any other person with his express or implied consent.

19............ It cannot be left to time, chance or conjecture for an inference by adopting an involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt practice will irresistibly admit of no doubt or qualm.

20. As a logical consequence of the principles enunciated by us, it follows that where the allegation of fraudulent practice is open to two equal possible inferences, the pleadings of corrupt practice must fail. ......."

42. The learned senior counsel for the petitioner on the other hand submitted that the election petition has been filed on variety of grounds including the grounds of corrupt practice based on post nomination speeches of the respondent, therefore, the election petition can not be dismissed at this preliminary stage only on account of the fact that pre nomination speeches do not constitute a cause of action or a corrupt practice. In this connection, Mr. Krishnamani submitted that para 30 of the election petition discloses material facts relating to post nomination speeches and contended that according to para 30 the pre nomination hate speeches continued even after filing of the nomination by the respondent. Mr. Krishnamani further submitted that in paragraph 30 of the election petition it is pleaded that the respondent made speeches in Chandia Hazara, Pooranpur and in other villages of Barkhera in the first week of May 2009 that he was bound by the affidavit, he had given in the Supreme Court to mark his words, but he continued with his dialogue instead of his previous statement 'jo haath hindu ke upar uthega us haath ko Varun Gandhi kaat dalega', he used to say 'jo haath hindu ke upar uthega us haath ko' and on his raising this slogan the mob used to say 'Varun Gandhi kaat dalega'. Therefore, the said speech of the respondent was a corrupt practice within the meaning of the Act specially when it was telecast in various channels. As such according to Mr. Krishnamani, the election petition discloses material facts.

43. In order to consider the aforesaid submissions of the learned counsel for the petitioner and the respondent, it would be expedient to consider as to what is the requirements to constitute a complete pleading which includes also an election petition. Section 83 of the Act deals with the contents of the election petition. According to section 83 (1)(a) an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 83 (1)(b) of the Act further provides that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Therefore, a pleading (election petition) which is ambiguous, unintelligible, vague or which contains unnecessary or irrelevant allegations, can not be said to be a pleading containing material facts. As held by the Apex Court in the case of H.D. Revanna vs. G. Puttaswamy Gowda and others, (1999) 2 SCC 217, the material facts should be fully set out in the Election Petition and if any fact is not set out, the petitioner can not be permitted to adduce the evidence relating thereto later nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an Election Petition. In the case of Virender Nath Gautam v. Satpal Singh & others, (2007) 3 SCC 617, the Apex Court reiterated this principle and held that an election petition must contain a concise statement of 'material facts' on which the petitioner relies. It should also contain 'full particulars' of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. When the election petitioner refers to certain speeches of the returned candidate and pleads that such speeches do constitute a corrupt practice within the meaning of section 100 and 123 of the Act, it is a must for the election petitioner to plead or annex the contents of the speeches in the election petition. It is also necessary for him to specify the date and time when, and the place where, the returned candidate had made the speeches. If all these things are missing in an election petition, it cannot be held that the election petition contains material facts. In the case of Azhar Hussain (supra), it was alleged by the returned candidate that no time, date and place of the speeches delivered by the respondent had been mentioned in the election petition and even no exact extracts from the speeches were quoted, the Apex Court found the election petition incompetent.

44. In the judgment rendered in the case of Gajanan Krishnaji Bapat and another vs. Datta Ji Ragho Baji Meghi and other, AIR 1995 SC 2284, the Apex Court reiterated the necessity of pleading material facts relating to a corrupt practice and held that the election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, howsoever, strong cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action. The Apex Court further observed in para 17 of the judgment that section 83 of the Act provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the corrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place of the commission of each of such corrupt practice. This Section has been held to be mandatory and requires first a concise statement of material facts and then the full particulars of the alleged corrupt practice. So as to present a full picture of the cause of action.

45. In the case of Subhash Desai vs. Sharad J. Rao (1994) Supp. (2) SCC 446, the Apex Court observed that section 86 does not contemplate dismissal of the election petition for non-compliance of the requirement of Section 83 of the Act. But section 83 enjoins that an election petition shall contain concise statement of material facts, and shall set forth full particulars of any corrupt practice that the petitioner alleges, which should be verified and supported by affidavit, so far the allegations of corrupt practices are concerned. This provision is not only procedural, but has an object behind it; so that a person declared to have been elected, is not dragged to court to defend and support the validity of his election, on allegations of corrupt practice which are not precise and details whereof have not been supported by a proper affidavit. Apart from that, unless the material facts and full particulars of the corrupt practices are set forth properly in the election petition, the person whose election is challenged, is bound to be prejudiced in defending himself of the charges, which have been levelled against him.

46. In the case of Udhav Singh vs. Madhav Rao Scindia, AIR 1976 SC 744, the Apex Court had considered the question of necessity of pleading material facts and held that 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 sec. 83(1) (a) of the Act.

47. In the case of Alisinghani Bhagwan Singh vs. Rajeev Gandhi, 1985 AWC 515, this Court reiterated the aforesaid principles and held that the expression "material facts" has been interpreted to mean facts which are necessary for formulating a complete cause of action and it has been held that if any one material statement is omitted from the pleading, the statement of the claim is bad. This view was expressed on the basis of the decisions of the Apex Court in Roop Lal Sathi v. Nachchattar Singh, (1983) 3 Supreme Court Cases 487 and Samant M. Bal Krishna v. George Fernandes, 1969 Supreme Court 1201.

48. The cases of Har Narain (supra), Hardwari Lal (supra) and Daulat Ram (supra) relied upon by the learned counsel for the respondent, which have already been referred to respectively in paragraphs 39, 40 and 41 of this judgment also laid down similar principles.

49. The object behind mandatorily requiring the election petitioner to disclose material facts in the election petition is to provide an opportunity to the returned candidate to meet the allegations and to set up appropriate defence. In absence of material facts, he can not be put to a surprise to answer relevant facts at the stage of evidence or trial. More so, no amount of evidence can be led if there is no pleading on the point. If the election petitioner does not quote or annex the speeches made by the returned candidate in the election petition nor he discloses the date, time and place of speeches, he can not be permitted to adduce evidence on this point. Therefore, requirement of disclosure of material facts in the election petition is not a mere formality rather it is a mandatory requirement. Even failure of pleading a single material fact amounts to disobedience of the mandate of section 83 (1) (a) of the Act.

50. The contents of the election petition with regard to post nomination speeches of the respondent are liable to be examined in the backdrop of the aforesaid settled principles.

51. In most of the paragraphs of the election petition whatever speeches of the respondent have been quoted, they relate to pre nomination period. As I have already held, while answering point no.1, pre nomination speeches neither constitute a cause of action nor a corrupt practice, therefore, they are liable to be excluded. Only paragraph 30 of the election petition, already reproduced in the beginning of para 36 of this judgment, contain facts relating to post nomination speeches. The averments made in paragraph 30 of the election petition can be classified in the following portions:

(a) The first portion pertains to hate speeches which were given more news item on every channels and telecast during the general election as compared to any other issue or agenda and because of this the hate speeches of 7th and 8th March 2009 remained fresh in the minds of the electorates of Pilibhit and finally on account of these speeches that the Hindu votes polarised in favour of the respondent Mr. Feroze Varun Gandhi and against the petitioner and other candidates. This portion of the averments made in paragraph 30 of the election petition is with regard to pre nomination speeches and their telecast which have already been considered and answered in point no.1 and point no. 2, therefore, it is not necessary to repeat these aspects again while considering the matter relating to post nomination speeches.

(b) The second portion pertains to respondent's speeches after his release on parole. The petitioner has stated that the respondent continued with hate speeches but he has not reproduced the hate speeches, which were made after release on parole. When the petitioner took pain to quote various speeches of the respondent relating to the pre nomination period, in various paragraphs of the election petition which were not relevant at all to establish a cause of action or a corrupt practice, there does not appear to be any justification in not reproducing or quoting the post nomination speeches in the election petition. The petitioner has also not specified as to what were the changed speeches after nomination. More so, the petitioner has not specified the date and time when, and the place where, such speeches were made, therefore, these material facts are missing in the election petition.

(c) The third portion is with regard to speeches made in village Chandiya Hazara, Pooranpur as well as in other village of Barkhera in the first week of May 2009 but the petitioner has not disclosed the specific date, time and the speeches made in these villages. The word "first week of May" is quite vague and general, therefore, this portion of the pleading contained in para 30 of the election petition also does not disclose material facts.

(d) The fourth portion of para 30 of the election petition is that the respondent used to say that he was bound by the affidavit he had given in the Supreme Court but continued with his dialogue instead of earlier statement 'jo haath hindu ke upar uthega us haath ko Varun Gandhi kaat dalega' , he used to say 'jo haath hindu ke upar uthega us haath ko' and his supporters used to raise the slogan 'Varun Gandhi kaat dalega'. The learned counsel for the petitioner submitted that a mere raising of such slogan did not amount to a corrupt practice and placed reliance upon Ramakant Mayekar vs. Celine D'Silva, (1996) 1SCC 399 in support of his submissions. In that case, the Apex Court propounded the principle that mere mention of religion does not amount to a corrupt practice and held that what is forbidden by law is an appeal by a candidate for votes on the ground of `his' religion or promotion etc. of hatred or enmity between groups of people, and not the mere mention of religion. There can be no doubt that mention made of any religion in the context of secularism or for criticising the anti-secular stance of any political party or candidate cannot amount to a corrupt practice under sub- section (3) or (3A) of Section 123. Neither in para 30 of the election petition nor elsewhere in the election petition, the petitioner has disclosed as to which place and on which date and time such dialogues were made by the respondent, therefore, this material fact is missing in the election petition. Mere a mention of the aforesaid slogan in para 30 of the election petition without any averment that such speeches were for the furtherance of the prospects of the election of the respondent or the same prejudicially effected election of any other candidate and also without any allegation of appeal by the respondent to vote for him on the ground of religion etc. or to refrain from voting for any person on that ground was not sufficient compliance of section 83(1)(a) of the Act, therefore, there is no pleading containing material facts to fulfil the requirements of section 123 (3) and section 123 (3-A) of the Act. Therefore, this portion of para 30 of the election petition also does not disclose material facts and is vague.

(e) Last portion of para 30 of the election petition is that the election campaign of Mr. Feroze Varun Gandhi was telecast by various channels including NDTV and Star News. More so, NDTV showed the same in its introductory montage of the coverage of the election results on 16.05.2009. This portion is also very vague and ambiguous. What was the telecast made by the aforesaid News channels and what were the speeches during the campaign by the respondent has not been specified in the election petition. A mere use of the expression that respondent's campaign was telecast by various channels can not be said to be material fact to constitute a corrupt practice, specifically tapes prepared by various channels have neither been filed with the election petition nor their copies have been furnished to the respondent. In the case of Ramakant Mayekar (supra) the Apex Court found a serious defect in the pleading on account of non production of the video cassettes or non production of its transcript with the election petition and held that this state of pleading relating even to the video cassettes, when the video cassettes or its transcript were not produced along with the election petition or its copy furnished with the copy of the election petition to the appellant, is a serious defect in the pleading which once again has been totally overlooked at the trial of this election petition. This again has resulted in raising an issue for which the requisite pleadings were not there and then admitting considerable evidence which is irrelevant and inadmissible.

52. On a careful scrutiny of the para 30 of the election petition, it can not be concluded that the petitioner has disclosed material facts constituting a cause of action or a corrupt practice. In this view of the matter, the submission of the counsel for the petitioner has no substance.

53. For the reasons discussed above, I am of the view that the election petition does not disclose material facts relating to the post nomination speeches of the respondent and is vague, general and uncertain, therefore, the election petition does not constitute a cause of action and is liable to be rejected. Point No.3 is disposed of accordingly.

POINT NO. (4)

54. With regard to the grounds relating to improper acceptance of nomination filed by the respondent, Mr. K.N. Tripathi submitted that the petitioner has made relevant allegations with regard to this ground in paras 41 to 51 of the election petition and also in ground "K" specified in paragraph 6 of the election petition. According to paragraphs 42 and 43 of the election petition, the petitioner has stated that two affidavits were sworn in on 22.4.2009 at about 12.10 PM and 12.20 PM at Pilibhit, which were filed by the respondent alongwith his nomination but at that time the respondent had been addressing a public meeting at Nawabganj district Bareilly, which is 25 Kms. away from Pilibhit, therefore, the presence of the respondent before the Notary Public in Pilibhit to swear the affidavits was not possible and as such his affidavits were no affidavit in the eye of law. The petitioner has, therefore, confined his contention with regard to only two affidavits, whose copies have been annexed as Schedule 20 to the petition. Even in the list of documents filed along with the petition only the aforesaid two affidavits have been specified. Mr. Tripathi further submitted that the respondent had filed four sets of nomination papers whereas the petitioner has challenged only one set of nomination paper and validity of the affidavits filed therewith and has not challenged remaining three nomination papers nor the affidavits annexed along with those three nomination papers. It is well settled that if a candidate files more than one nomination paper, his nomination paper can be rejected only on the ground that his all the nominations are invalid. In case any nomination is valid, the candidate shall deemed to be a duly nominated candidate, notwithstanding some of the nominations are found invalid. Mr. Tripathi placed reliance on Rama Nand Prasad Singh vs. Vidya Sagar Nishad, AIR 2000 Patna 262 in support of his submissions. The Patna High Court has observed in paragraph 8 as follows:

"8. ......It appears that there is no rule that if four sets of nomination papers are filed and if some of the nomination papers are rejected, the other sets of nomination papers shall also be deemed as rejected and if any of the four sets of nomination papers is found fit and proper to be accepted and is accepted, the nomination would not be deemed to be valid."

55. Mr. Tripathi further relied upon S. M. Banerji vs. Sri Krishna Agrawal, AIR 1960 SC 368, in which the Apex Court observed in paras 7 and 8 as under:

"7. The foregoing provisions, so far relevant to the present enquiry, may be summarised thus: If a candidate has been dismissed from Government service and a period of five years has not elapsed since dismissal-, he will have to file along with the nomination paper a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State. If it has not been done, the Returning Officer, either suo motu or on objections raised by the opposite party, has to reject the nomination. If the nomination paper does not disclose any such defect and if the Returning Officer has no knowledge of that fact, he has no option but to accept the nomination. The Returning Officer may improperly accept a nomination paper though it discloses the said defect and though an objection is raised to its reception on that ground. Section 100(1)(d)(i) of the Act deals with improper acceptance of any nomination and s. 100(1)(d)(iv) permits an attack on the ground, among others, of non-compliance with the provisions of the Act.

8. Before we consider the contentions of the parties, it would be convenient to appreciate the true scope of the two decisions of this court in the light of the arguments advanced by the learned Counsel. The first decision is in 1955-1 SCR 267: (AIR 1954 SC 520) Durga Shankar Mehta v. Thakur Raghuraj Singh. This decision turns upon the provisions of sub-s. (1)(c) and sub-s. (2)(c) of s. 100 of the Representation of the People Act, 1951 before it was amended by Act XXVII of 1956. Sub-s. (1)(c) and sub-s. (2)(c), in so far as they are material to the present discussion correspond to s. 100(1)(d)(i) and s. 100(1)(d)(iv) respectively of the amended Act. This case arose out of an election held in December, 1951, for the double member Lakhnadon Legislative Assembly Constituency in Madhya Pradesh, one of the seats being reserved for Scheduled Tribes. The appellant and respondents 1, 3,5 and 7 therein were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat. No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent No. 2. The appellant and respondent No. 2 were declared elected to the general and reserved seat respectively. The respondent No. 1 filed an election petition against the appellant and the other respondents for setting aside the election as wholly void. One of the allegations was that the respondent No. 2, was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Art. 173 of the Constitution. The Election Tribunal held that the acceptance by the Returning Officer of the nomination of respondent No. 2 amounted to an improper acceptance of nomination within the meaning of s. 100(1)(c) of the Act, and on that ground declared that the entire election was void. The candidate, who was elected to the general seat preferred an appeal to this Court and contended that his nomination had been properly accepted by the Returning Officer and, therefore, if respondent No. 2 was not duly qualified to be elected, his election alone should be declared void on the ground that such disqualification shall fall under sub-s., (2)(c) of s. 100 and not under sub-s. (1)(c) thereof This Court accepted the contention and in that context defined the import of " improper acceptance " within the meaning of s. 100(1)(c) of the Act. Mukherjea, J., as he then was, delivering the judgment of the Court observed at p. 277 (of SCR): at (p. 524 of AIR)::

" If the want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning-Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. 'This would be apparent from section 36, sub-section (7) of the Act . . .".

The learned Judge proceeded to state at p. 278 (of SCR): (at p. 524 of AIR)::

" It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance."

This judgment, therefore, is a clear authority for the proposition that if the want of qualification does not appear on the face of the nomination paper and if no objection is raised on that ground before the Returning Officer, the acceptance of the nomination must be deemed to be a proper acceptance."

56. Mr. M.N. Krishnamani, on the other hand, submitted that it was incorrect to say that the petitioner has challenged only one nomination paper filed by the respondent. In fact the petitioner has challenged all the four sets of nomination papers filed by the respondent and has made necessary averments in para 6K and 43 of the election petition which are being reproduced as under:

"6K. Because the result of the election has been materially affected on account of improper acceptance of nomination of returned candidate. The affidavit of returned candidate in form 26 and affidavit of assets were neither signed before the Notary Public nor was it sworn in the presence of the returned candidate thus the affidavit filed with the nomination paper was no affidavit. The affidavit was purported to have been signed and attested at 12.10 PM and 12.20 PM on 22.04.2009 respectively before the Notary Public at Pilibhit, whereas Mr. Feroze Varun Gandhi was in Bareilly in the corresponding period and in the absence of the deponent before the Notary Public at Pilibhit no affidavit could be sworn. Therefore the alleged affidavit filed along with the nomination is not a valid affidavit as required under section 33 and 33A of the Representation of the People Act, 1951. The nomination filed by the returned candidate ought to have been rejected but the returning officer wrongly accepted the nomination of the returned candidate which has materially affected the result of the election and thus the election of the returned candidate is liable to be declared void on the ground of section 100(1) (d) (I) of Representation of People Act, 1951. The concise statement of the material facts and full particulars of the ground have been comprehensively taken up in the succeeding paragraphs that are paragraphs 41 to 51 infra. "

"43. That Mr. Feroze Varun Gandhi filed his nomination papers on 22.04.2009 and the affidavits along with the Nomination, which are mandatory under section 33 (a) of the Act. The said affidavits are no affidavits in the eys of law since the affidavits have been signed and sworn before the Notary Public at about 12.10 PM and 12.20 PM at Pilibhit, whereas the tracking team as well as the live telecast on the channels would have captured the footage showing that Mr. Feroze Varun Gandhi was addressing a public meeting in Nawabganj, Bareilly at the same time."

57. Mr. Krishnamani submitted that in view of the aforesaid averments made in the election petition two things are very clear, firstly the petitioner filed the affidavits which were already in his possession, secondly, he further relies on other affidavits of the respondent which were not in his possession. In view of the averments made in paras 20, 23 and 43 of the election petition, the respondent can not be permitted to contend that the petitioner's case is confined to the extent of questioning only one nomination paper and not all the nomination papers filed by the respondent by taking the advantage of the fact that only the affidavits relating to one nomination paper have been annexed with the election petition. Mr. Mani lastly submitted that if the election petition and its annexures are read together, it gives the only conclusion that the petitioner has challenged acceptance of all the four nomination papers and the affidavits annexed therewith filed by the respondent. This contention further finds support from the list of documents filed under Chap. XV-A Rule 3 of the Allahabad High Court Rules.

58. In order to appreciate the aforesaid submissions, it seems to be expedient to look into the relevant provisions of the Act. Section 33 of the Act provides for presentation of nomination papers and requirements for a valid nomination. Sub-section (6) of section 33 provides that nothing in this section shall prevent any candidate from being nominated by more than one nomination paper: provided that not more than four nomination papers is permissible by or on behalf of any candidate nor can be accepted by the returning officer for election in the same constituency. In this view of the matter, a person may file up to four nomination papers in an election relating to the same constituency. If a person files more than one nomination paper, his nomination cannot be treated to have been rejected unless his all nomination papers are found as invalid by the returning officer after the summary inquiry contemplated in section 36(2) of the Act. In other words, if a person files only one nomination paper and his nomination paper is invalid within the meaning of section 36(2) of the Act, his nomination paper in toto shall be rejected and on such rejection he will be out of fray as a candidate at the election but the position is different where more than one set of nomination papers are filed. In that situation, if any of the sets of the nomination papers is found, on summary inquiry, in conformity with the requirements of section 33 (2) of the Act, such nomination paper can not be treated to be rejected only on the ground that his other nomination papers are not valid and are liable to be rejected. In other words, if more than one set of nomination papers are filed and any of them is valid in all respects, the invalidity, illegality or incompetency of other nomination papers, in such situation, will carry no significance or relevance to the question relating to the validity of nomination papers. This legal proposition is well settled and was not disputed at the Bar. Therefore, the person challenging the nomination paper of a candidate, has to challenge his all the nomination papers instead of any one of them and plead the material facts on which basis the nomination papers are alleged to be invalid.

59. The respondent has pleaded in paragraph 47 of the written statement that he had filed four sets of nomination paper, which has not been denied by the petitioner in the Replication and was not disputed even during the hearing. The submission of the learned counsel for the respondent was that the petitioner has questioned the validity of only one nomination paper in the election petition and has not set up any pleading with regard to remaining three nomination papers, therefore, if the present pleading of the petitioner regarding the nomination papers of the respondent is taken at its face value, the election of the respondent can not be quashed on this ground, because his other three nomination papers still survive as valid as they have not been questioned in the election petition. To fortify this submission, the learned counsel for the respondent submitted that the petitioner has made reference of only two affidavits dated 22.4.2009 of the respondent in the election petition. One affidavit was sworn in at 12.10 PM and the other was sworn in at 12.20 PM at Pilibhit and have been annexed as schedule 20 to the election petition. The petitioner has alleged in the election petition that the respondent had been addressing a public meeting in district Bareilly during the aforesaid period. The learned counsel for the respondent further submitted that it has also not been disputed that each nomination paper was to be supported by two affidavits of the candidate, one regarding his assets and the other regarding the informations required by section 33A of the Act, therefore, there were in all eight affidavits on behalf of the respondent, which were filed with his four nomination papers but the petitioner has made a reference of only two affidavits in the election petition and has not made any assertion regarding other affidavits. As such the election petitioner has questioned only one set of nomination paper filed by the respondent with which both the affidavits (schedule 20) have been annexed and not any other nomination paper. Mr. Krishnamani tried to rebut this submission on the ground that the expression 'nomination papers', in plural has been described in the election petition, which means the petitioner has challenged all the nomination papers and not only one nomination paper filed by the respondent.

60. In my opinion, the election petition is silent as to what was the date and time of the swearing in of the remaining six affidavits of the respondent filed with other three nomination papers. The election petition is further silent as to whether the respondent had been addressing a public meeting in Bareilly district also during the period the other six affidavits were allegedly sworn in before the Notary Public at Pilibhit. In the election petition, date 22.4.2009, time 12.10 PM - 12.20 PM has been disclosed for swearing in of the affidavits (schedule 20) at Pilibhit. Each affidavit takes its own time for its swearing in before the Oath Commissioner or Notary Public, therefore, all the eight affidavits could not be sworn in during the aforesaid period of ten minutes. The petitioner, when noticed this infirmity in the election petition, tried to clarify the infirmity and stated in para 42 and 43 of the Replication that swearing in of all the affidavits had been done between 12.10 to 12.50 PM, which means each affidavit consumed 5 minutes for its swearing in, therefore, all eight affidavits consumed forty minutes i.e. from 12.10 PM to 12.50 PM. The aforesaid clarification made in the Replication has no relevance nor it can be treated as a part of pleading required to be made in the election petition specially when the respondent had no occasion or opportunity to reply the facts brought by way of replication and not pleaded in the election petition. According to settled legal position,the material facts must be disclosed in the election petition and not elsewhere. The election petition does not disclose the material fact that the respondent was not in Pilibhit during the period 12.21 PM to 12.50 PM. The election petition further does not disclose the material fact that during the period 12.21 PM to 12.50 PM the respondent had been addressing a public meeting in Bareilly district. It is also not pleaded in the election petition specifically that the respondent's other six affidavits were no affidavit in the eye of law. In absence of these material facts in the election petition, it can be concluded with the observation that the petitioner has not disclosed material facts relating to validity or competency of other three nomination papers of the respondent including remaining six affidavits filed with those three nomination papers, therefore, mere use of term nominations (in plural) in the election petition is of no significance. More so, the petitioner has not annexed copies of other six affidavits with the election petition nor supplied their copies to the respondent. The respondent's nomination paper has been questioned in the election petition only on the ground of deficiency in the affidavits (schedule 20) and not on any other ground.

61. For the reasons disclosed above, I am of the view that the election petition does not contain material facts with regard to affidavits filed by the respondent in support of his remaining three sets of nomination papers except the two affidavits (schedule 20) filed with one set of nomination paper nor supplied copies thereof to the respondent.

62. Point no.4 is answered accordingly.

POINT NO. (5)

63. The last submission on behalf of the respondent was that the petitioner has not supplied true copies of certain documents, therefore, he has not made compliance of section 81(3) of the Act and as such the election petition is liable to be dismissed under section 86 of the Act. Learned counsel for the respondent submitted that the petitioner has pleaded in the election petition regarding broadcast of post nomination speeches of the respondent and the tapes made by various channels. The contents of alleged speeches, tapes and broadcast have not been quoted in the petition nor they have been made integral part of the election petition. It was further submitted that the CDs filed by the petitioner relate to the pre nomination speeches. It was also submitted that in para 40 of the election petition, the petitioner has relied on a report of Forensic Science Laboratry (inshort 'FSL') to the effect that voice in the CDs was of the respondent. This report is very material to link the respondent with the CDs. The petitioner has not furnished any copy of the report of FSL to the respondent. The learned counsel for the respondent further submitted that in para 45 of the election petition the petitioner has relied on certain video clippings to show that the respondent was not in Pilibhit when his two affidavits were sworn in before the Notary Public at Pilibhit. The said video clippings are the basis of allegations made in paragraphs 42 and 45 of the election petition but no video clippings have been provided to the respondent. In paragraph 19 of the petition, the petitioner has referred to two complaints and other references made by the respondent. In paragraph 21 of the petition, the petitioner has relied on the report of L.I.U. And the CD sent by the District Election Officer to the Election Commission. In paragraph 23 of the petition, the petitioner has referred to a more comprehensive CD having more damaging inputs but copies of none of the documents referred to in paras 19, 21 and 23 have been furnished to the respondent. These documents, according to the petitioner, contain material facts, therefore, due to non-furnishing of copies of these documents, the petition is liable to be dismissed. In support of his submissions, Mr. K.N. Tripathi relied on following cases:

(i) Manohar Joshi v. Nitin, (1996) 1 SCC 169;

(ii) U.S. Sasidharan v. Karunakaran, AIR 1990 SC 924;

(iii)Azhar Hussain v. Rajeev Gandhi, AIR 1986 SC 1253.

64. In the case of Manohar Joshi (supra), the Apex Court held that where the document is incorporated by reference in the election petition, without reproducing its contents in the petition, it is mandatory to furnish a copy of that document to the respondent, failing which the petition is liable to be dismissed under section 86(1) of the Act but where the contents of the document are fully incorporated in the election petition and its copies also filed therewith, it is not necessary to furnish a copy of that document to the respondent. Para 24 of the judgment being relevant is reproduced as follows:

"24. The distinction brought out in the above decisions is, that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of the petition and if a copy of that document is not furnished to the respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition under Section 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election petition, not furnishing a copy of the document with a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the document filed with the election petition is an integral part of the election petition being incorporated by reference in the election petition and without a copy of the document, the copy is an incomplete copy of the election petition and, therefore, there is non-compliance of Section 81(3). In the other situation, the document annexed to the petition is mere evidence of the averment in the election petition which incorporates fully the contents of the document in the body of the election petition and, therefore, non-supply of a copy of the document is mere non-supply of a document which is evidence of the averments in the election petition and, therefore, there is no non-compliance of Section 81(3)."

65. In the case of U.S. Sasidharan v. Karunakaran, (supra), the Apex Court while reiterating the aforesaid two principles laid down in Manohar Joshi's case, propounded one additional principle that when a document has been filed in the proceeding but is not referred to in the petition, either directly or indirectly, a copy of such document need not be served on the respondent. The observations made in paras 14, 15, 16 and 17 of the judgment are as under:

"14. It has been already noticed that the High Court dismissed the election petition as the appellant has not furnished to the first respondent copies of the notice, photograph and the video cassette referred to above along with a copy of the election petition. So far as the copies of the notice and the photograph are concerned, we do not think that the High Court was justified in holding that these should have also been furnished to the first respondent along with the copy of the election petition. Dr. Chitale, learned Counsel appearing on behalf of the first respondent, also has not urged that the copies of these two documents should have been served upon the first respondent. What has, however, been vehemently urged on behalf of the first respondent is that he should, have been served along with the election a copy of the video cassette. This contention will be considered presently.

15. We have already referred to section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of section 81(3) and, as such, the court has to dismiss the election petition under section 86(1) for noncompliance with section 81(3).

16.On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition.

17.There may be another situation when a copy of the document need not be served on the respondent along with the election petition. When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. What section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate. When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents."

66. In the case of Azhar Hussain v. Rajeev Gandhi (supra) the Apex Court reiterated the aforesaid principles and held in para 28 of the judgment as follows:

"28. It will be noticed that in the election petition it has been mentioned that a copy of the poster would be subsequently filed, and the cuttings of some newspaper reports would also be filed later on. The election petitioner sought an amendment to delete the averments on both these aspects. The High Court rejected the prayer in regard to poster (Ex. B), but granted the prayer in respect of the cuttings. The High Court has taken the view that the poster was claimed to be an integral part of the election petition and since it was not filed (much less its copy furnished to the respondent) the pleading suffered from infirmity and non-compliance with Section 83(1) read with Section 86(1) of the Act. Non-filing of the poster is fatal to the election petition as in the absence thereof the petition suffers from lack of material facts and therefore the statement of cause of action would be incomplete. Nothing turns on the facts whether or not the words "a copy of the said poster would be filed as Exhibit B" are allowed to be retained in the election petition or are deleted as prayed for by the appellant. The fact remains that no copy of the poster was produced. It must also be realized that the election petitioner did not seek to produce the copy of the poster, but only wanted a reference to it deleted so that it cannot be said that the accompaniments were not produced along with the election petition. The fact remains that without the production of the poster, the cause of action would not be complete and it would be fatal to the election petition inasmuch as the material facts and particulars would be missing. So also it could not enable the respondent to meet the case. Apart from that the most important aspect of the matter is that in the absence of the names of the respondent's workers, or material facts spelling out the knowledge and consent of the respondent or his election agent, the cause of action would be incomplete. So much so that the principle enunciated by this Court in Nihal Singh's case (supra) would be attracted. And the Court would not even have permitted the election petitioner to lead evidence on this point. The High Court was therefore fully justified in taking the view that it has taken. "

67. Mr. M.N. Krishnamani, on the other hand, submitted that the documents referred to in paras 19, 21, 23, 40 and 45 of the election petition were neither in the possession of the petitioner nor he had any control thereon, therefore, it was beyond his reach to furnish copies of such documents to the respondent. The petitioner has already moved an application for summoning the documents referred to in the aforesaid paras of the election petition, therefore, the election petition can not be dismissed for non compliance of section 81(3) of the Act. In furtherance of his submissions, Mr. Krishnamani, referred to Rule 3 of Chapter XV A of the Allahabad High Court Rules, which reads as under:

"3. Presentation of election petition.-Every election petition shall be presented to the Registrar.

The petition shall bear an office report on Court-fee and on compliance, in addition to other matters, with Sections 81, 82, 83 and 117 of the Act.

The petitioner shall file with the petition a list of all documents whether in his possession or power or not, on which he relies as evidence in support of his claim."

68. On the basis of the aforesaid Rule, the petitioner's counsel submitted that the petitioner had supplied the respondent the copies of all the documents which were in his possession, therefore, the documents which were not in his possession, could neither be filed nor copies thereof could be given to the respondent. The non-supplied documents have not only been referred to in the election petition but their contents have also been sufficiently pleaded in the election petition, therefore, there is no non compliance of section 81(3) of the Act. It was next submitted that the case of Azhar Hussain vs. Rajeev Gandhi (supra) is not applicable to the facts of this case. In that case there was no allegation against the returned candidate directly and it was contended that multiple third parties were working with the consent of the respondent. It was, therefore, held in that case that without complete details of the events, the respondent can not be expected to defend himself effectively for the acts done by others whereas in the present case all the allegations have been made against the respondent for indulging himself in committing corrupt practice, therefore, the case of Azhar Hussain (supra) has no application in the present case.

69. It was lastly submitted on behalf of the petitioner that the respondent has nowhere specified as to which of the copies furnished by the petitioner was not tallying with the original. The election petition alongwith adequate number of copies of the petition had been filed in the office of the Registrar General, who in turn, served the same on the respondent, therefore, the respondent can not be permitted to raise the plea of non compliance of section 81 (3) of the Act.

70. Section 81(3) of the Act provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 86 (1) provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. In other words, if there is non-compliance of section 81(3) of the Act, the election petition can not proceed and has to be dismissed by the High Court.

71. The decisions of the Apex Court in the cases of Manohar Joshi, U.S. Shashidharan and Azhar Hussain, have settled the following principles:

(I) Compliance of section 81(3) of the Act is mandatory and its non compliance entails dismissal of the election petition under section 86(1) of the Act without any exception;

(II) Where a document is incorporated by reference in the election petition without reproduction of its contents in the petition it becomes an integral part of the election petition, therefore, it is mandatory to furnish a copy of such document along with the election petition to the respondent. Non submission of this document is fatal;

(III) But where the contents of a document are fully incorporated in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and its non supply does not amount to non compliance of section 81(3) of the Act;

(iv) When a document has been filed in the proceeding but is not referred to in the petition, directly or indirectly, a copy of such document need not be served on the respondent.

(v) In absence of the document required to be furnished along with the petition to the respondent, he would not be able to meet the case set up by the petitioner, therefore, such non compliance causes serious prejudice to the defence of the respondent. Due to this reason, section 86(1) of the Act makes it mandatory for the High Court to dismiss the election petition on the ground of non compliance of section 81 (3) of the Act.

72. Mr. Krishnamani instead of disputing the aforesaid legal position and placing any other law on the subject contended that non supplied documents referred to in paras 19, 21, 23, 40 and 45 of the election petition were not in the possession of the petitioner, therefore, it was beyond his reach to furnish copies of such documents to the respondent. Keeping in view this difficulty, the petitioner has filed not only a list of such documents but has also moved an application for summoning the documents, therefore, in such situation, the election petition cannot be dismissed for non compliance of section 81(3) of the Act.

73. In my opinion, the aforesaid submission of Mr. Krishnamani has no merit. Where election petitioner referred to a document in the election petition without reproducing its content in the petition, it becomes an integral part of the election petition, therefore, the election petitioner can not be exonerated from making compliance of mandatory provision of section 81(3) of the Act. If an election petitioner is not in possession of a document, the proper course for him not to make the document as an integral part of the election petition by referring the same in the election petition but if he does so he has no option except to make compliance of the requirements of section 81 (3) of the Act. The other course, that was open to the petitioner was to reproduce the contents of the document in the election petition and in that eventuality he could not be compelled to furnish a copy of the document to the petitioner. But the election petitioner, in the garb of not having possession of the document, can not be permitted to get rid away the requirement of the aforesaid mandatory provision. The respondent in absence of such documents and their contents, would not be able to meet the allegations made in the election petition and to submit relevant reply in the written statement. More so, he can not be put to a surprise after filing of the written statement to meet the document neither filed by the petitioner along with the election petition nor reproduced in the petition. In that eventuality, non-furnishing of the document to the respondent would cause serious prejudice to his defence. It appears that due to this reason section 86 (1) of the Act makes it mandatory for the High Court to dismiss the election petition on the ground of non-compliance of section 81(3) of the Act. No doubt, the petitioner has moved an application for summoning the documents referred to in paras 19, 21, 23, 40 and 45 of the election petition but the prayer for summoning such documents can not be treated to be the compliance of section 81 (3) of the Act. In that eventuality too, the respondent would not be able to meet the documents, or to set up his defence as he has already filed the written statement and had no occasion to answer the documents and their contents in the written statement already filed. Therefore, the petitioner can not be exonerated from supplying the aforesaid documents to respondent as mandatorily required by section 81(3) of the Act.

74. For the reasons discussed above, I am of the view that the petitioner has not supplied the documents referred to in paras 19, 21, 23, 40 and 45 of the petition to the respondent and they being the integral part of the election petition were required to be furnished to the respondent, therefore, the petitioner has not made compliance of section 81 (3) of the Act.

75. Point no.5 is answered accordingly.

POINT NO. (6)

76. On a perusal of the entire election petition, it is abundantly clear that the petitioner has challenged the respondent's election mainly on the ground that the respondent's election speeches during the pre as well as post nomination period amount to a corrupt practice and even his pre nomination speeches due to telecast/publication by various TV channels and other media during the post nomination period remained alive and effected the electorates to cast their votes for the respondent on the ground of religion. In view of the finding on point no.1, the pre nomination speeches of the respondent, which have been averred in most of the paragraphs of the election petition, do not constitute a corrupt practice nor disclose a cause of action and are irrelevant and unnecessary, therefore, such speeches are liable to be excluded. In view of the finding on point no. 3, the post nomination speeches of the respondent, referred to only in paragraph 30 of the election petition, do not disclose material facts and are vague, general and uncertain. In the case of Anil Vasudeo Salgaonkar vs. Naresh, (2009) 9 SCC 310, the Apex Court has dealt with the consequence of not pleading material facts in the election petition and held in para 50 that the position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. The Apex Court further held in para 51 that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(l)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. As observed by this Court in the case of Har Narain vs. Vinod Kumar, AIR 1987 All 319, if material facts are not stated in the petition then it would be liable to be rejected straightway under Order 7, Rule ll(a) C.P.C. The law does not permit to inject a life in a dead petition by inserting the material facts and furnishing cause of action thereby. Continuance of the trial sans cause of action would amount to an abuse of process of the court within the meaning of section 151 C.P.C.

77. Therefore, the pleading relating to post nomination speeches being against the mandate of section 83 (1) of the Act does not constitute a cause of action and is liable to be rejected.

78. The point no.2 has dealt with the telecast/publication of pre nomination speeches by various TV channels and media and it has been found that the election petition is silent with regard to material facts that the telecast/publication of such speeches were made with the consent, express or implied, of the respondent or his election agent. In absence of material facts in the election petition relating to such consent of the respondent or his election agent, the publication/telecast of the respondent's speeches by the media does not constitute a corrupt practice committed by the respondent or his election agent or by any other person with the consent of the respondent or his election agent. It is well settled that the act of any third party is not binding on the candidate or his election agent unless it is alleged that it was consented to by the candidate or his election agent. In this view of the matter, telecast/publication of respondent's pre nomination speeches by TV channels and media has no relevance to constitute a corrupt practice against the respondent.

79. In addition to aforesaid it may also be mentioned that according to the finding on the point no.4 the election petition merely questions the validity of only two affidavits (schedule 20) filed with one set of nomination paper of the respondent and it does not contain material facts with regard to other six affidavits filed in support of remaining three sets of nomination papers of the respondent, and the petitioner has not challenged all the four sets of nomination papers filed by the respondent. Even if the petitioner's case that the affidavits (schedule 20) were not validly sworn in by the respondent on the date and time disclosed in the affidavits is ultimately proved, the other three sets of nomination papers of the respondent would still survive, therefore, the election petition can not succeed on the ground that one set of the nomination paper of the respondent had been accepted improperly.

80. In view of the finding on the point no. 5, the petitioner has not furnished copies of the documents referred to in paras 19, 21, 23, 40 and 45 of the election petition to the respondent as required by section 81 (3) of the Act, therefore, the petitioner has not made compliance of the mandatory provisions of section 81(3) of the Act. As such the election petition is liable to be dismissed only on this ground under section 86(1) of the Act.

81. Mr. M.N. Krishnamani tried to contend that the election petition has raised so many questions relating to the fact and law, which disclose various triable issues, therefore, it is not proper to dismiss the petition at this preliminary stage.

82. In the case of Jyoti Basu vs. Debi Ghosal, AIR 1982 SC 983, the Apex Court observed that a right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of Statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. In the trial of election dispute the court is put in a straight jacket. The view expressed in Jyoti Basu's case had already been taken by the Apex Court as back as in the year 1954 in the case of Jagannath vs. Jaswant Singh, AIR 1954 SC 210 Para 7 and has been reiterated again in the case of Gajanan Krishnaji Bapat and another vs. Datta Ji Ragho Baji Meghi and other, AIR 1995 SC 2284.

83. Therefore, an election petition, which does not conform to the statutory requirements, is a dead petition and must be dismissed out rightly. In the present matter, in view of the findings on the aforesaid points the election petition suffers from material infirmities as it does not inter alia fulfil the statutory requirements of section 81 (3) and 83 (1) of the Act. Therefore, the contention that the election petition discloses triable issues, does not appear to have any merit.

84. For the aforesaid reasons, the election petition is liable to be dismissed. Point No. 6 is decided accordingly.

85. Therefore, all the three interlocutory applications are allowed. Consequently, the election petition is dismissed with costs.

Order dated:-14.9.2011 RKSh