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PETITIONER: DAULAT RAM CHAUHAN

       Vs.

RESPONDENT: ANAND SHARMA

DATE OF JUDGMENT16/01/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MISRA RANGNATH

CITATION:  1984 AIR  621            1984 SCR  (2) 419  1984 SCC  (2)  64        1984 SCALE  (1)81  CITATOR INFO :  R          1985 SC  24  (2)

ACT:      Representation of  the People  Act 1951  (43 of  1951 ) Sections 82(b), 86 and 123(2). Election Petition-allegations of corrupt  practices against  two candidates-Candidates not impleaded as  parties to election petition-Election petition whether liable to be dismissed      Corrupt Practices-Allegations  of-To be  proved like  a criminal charge without admitting of any doubt.      Practice & Procedure .      Pleadings in  Election Petitions-Allegations of corrupt practice-Necessity to be clear and specific.

HEADNOTE:      The respondent  filed an  Election Petition challenging the election  of the  appellant who  was declared elected to the State  Assembly on  the ground  that the  appellant, his election agent  and  other  persons  along  with  two  other candidates   made libelous  slogans at a rally and displayed pamphlets to alienate the- voters 1. from the respondent and this constituted  a corrupt  practice within  the meaning of section 123  of the  Representation of The People Act, 1951. upholding the . . respondent’s contention the High Court set aside the election.      In the  appeal to  this Court,  a preliminary objection was raised  on behalf  of the  appellant that  since the two candidates  who  were  alleged  to  have  committed  corrupt practices  had   not  been  made  parties  to  the  Election Petition, the  petition should have been dismissed in limine for non  compliance with  the requirements  of section 82(b) read with section 86 of the Act.      Over-ruling the preliminary objection: ^      HELD: 1.  The combined  effect  of  section  82(b)  and section 86  of the  Act is  that once allegations of corrupt practice are made against a candidate it is incumbent on the Election petitioner to join him as a party and failure to do so would  lead to  the dismissal  of the  Election  Petition under section  86. .  But before section 82(b) or section 86 could come  into play it must be proved that the allegations of corrupt  practice made  against the candidate amounted to

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corrupt practices  as  contemplated  by  the  provisions  of section 123. [423 F-G]      2. Section  82(b) contains  the salutary  provision  of audi alteram  partem and requires that an allegation must be proved to the hilt in the presence of the Person 420 affected, failing  which the  election petition  will  stand dismissed. [426E-F]      3. Tn  order that an act of the candidate may amount to a corrupt  practice ,  it must  be committed  either by  the candidate himself, his agent OF by any other person with the consent  of   the  candidate   or  his  election  agent.  An allegation  of  corrupt  practice  must  be  proved  like  a criminal charge without admitting of any doubt. [424 C]      4 The  Election Petition  must  contain  the  following pleadings:  (1)   Direct  and  detailed  nature  of  corrupt practices as  defined in  the  Act,  (2)  details  of  every important  particularly   ex.  the  time,  place,  names  of persons, use  of words  and expressions,  etc. (3)  that the corrupt practices were indulged in by the candidate himself, or his authorised agent or any other person with his express or implied consent. [428 E-F]      5. A person may, due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the consent  given to  him by  the candidate or his election agent? the  same would  not amount  to a pleading of corrupt practice as  contemplated by law. It cannot be left to time, chance or  conjecture for  the court to draw an inference by adopting an  involved process  of reasoning.  The allegation must be   clear  and specific that the inference. Of corrupt practice will admit of no doubt or qualm. [428 G-H]      In  the  instant  case,  it  was  shown  that  the  two candidates who participated in the rally might. have shouted libelous, slogans.  But there  is nothing  to show that they were election  agents or  workers of  the appellant  or that they participate  or shouted  slogan with  the express  arid implied consent of the appellant. Whenever there is a rally, crowd or  a gathering  a number of persons participate. That by itself  would. not  give rise  to an inference that their participation or  presence was at the-instance of the person in  whose  favour  the  crows  gathered  or  the  rally  was organised. [429 C-D] .      Udhav Singh  v. Madhav  Rao Scindia,  [1976] 2 S. C. R. 246; Haji  C .  H. Mohammad  Koya v.  T.R.S.M.A.  Muthukoyd, [1979] 1 S.C.R. 664 and Samant N. Balakrishna etc. v. George Fernandez & ors., [1969] 3 S.C.R. 603; referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 453 of 1983,      From the  Judgment and  order dated  the 28th December, 1981 of the Himachal Pradesh High Court in Election Petition No. 112o 1982.      Shanti Bhushan,  N. M.  Ghatate and S. V. Deshpande for Appellant.      M.C. Bhandare, T. Sridharan, Ms. S. Bhandare and Ms. CK Sucharita for the Respondents. 421      The Judgment of the Court was delivered by . A      FAZAL ALI,  J. This election appeal is directed against a judgment  dated December  28, 1982  of the Single Judge of the Himachal  Pradesh High  Court, who  was assigned  as  an

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election Judge under the provisions of the Representation of the People  Act (hereinafter referred to as the ’Ac-t’). The appeal arises  out of  an election  to the  Himachal Pradesh Legislative Assembly  from the  Simla constituency. The poll was held  on May 19, 1982 and the result was declared on May 21, 1982  whereby the  appellant was  declared elected  by a margin of 2745 votes. The respondent, Anand Sharma, filed an election petition in the High Court challenging the election of the  appellant on  the ground  that  the  appellant)  was guilty  of   indulging  in   several  corrupt  practices  as envisaged by  the provisions  of the  Act. The  High  Court, after giving  though the  entire evidence of the parties and considering the  documents, came  to the conclusion that the allegations of  corrupt practices against the appellant were fully proved  and accordingly  set aside his election, hence this appeal  to this  Court by the elected candidate, Daulat Ram Chauhan.  We  may  also  mention  here  that  two  other candidates, besides  others, K.D.  Satish and  Pooran  Chand Sood  (hereinafter   referred  to  as  ‘Batish’  and  ’Sood’ respectively) were also in the field but they had withdrawn.      Mr. Shanti Bhushan, appearing for the appellant, raised a  preliminary   objection  which,   according  to  him,  if accepted, was sufficient to dismiss the election petition of the respondent  in limine.  We had  decided to  go into  the validity of  the preliminary  objection because  if  it  was accepted  then  the  election  petition  would  have  to  be dismissed and  it would  not be necessary to hear the appeal on merits  but if  the preliminary  objection was  overruled then the appeal would have to he heard on merits .      The only  important point raised by the counsel for the appellant before  us is  that  as  the  election  petitioner (respondent) had  alleged that  Batish and  Sood,  committed corrupt practices  with the consent of the appellant and yet they were  not made  parties to  the election  petition, the High Court  should have  dismissed the  election petition fn limine under  the provisions  of s.82(b)  read  with s.86 of the Act.  It is  not disputed before us that Batish and Sood were candidates  for election  to the Simla constituency and that they  were not  made parties  to the  election petition filed by the respondent in the High Court Section 82(b) runs thus: 422      ’’82. Parties to the petition           A petitioner  shall join  as  respondents  to  his           petition.           (b) any  other candidate  against whom allegations      of corrupt practice are made in the petition."      Section 86  provides that where there is a violation of s. 82, the High Court shall dismiss the petition.      The  dominant  question  for  consideration  is  as  to whether or  not the  respondent had  alleged that Batish and Sood indulged in corrupt practice as defined in s.123 of the Act. Mr.  Bhandare, appearing  for the  respondent,  however submitted that  the allegations  made against  the aforesaid persons did  not amount  to corrupt practice as contemplated by s.123  because from  the averments made by the respondent there is nothing to show that these two persons had indulged in corrupt  practice either  at the  instance  or  with  the consent of the appellant, or his election agent.      In view of the arguments of the parties the matter lies within a very narrow compass because Mr. Shanti Bhushan with his usual  ingenuity and  brevity has invited us to consider the effect  of the  allegations  made  in  para  16  of  the election petition  read with para 4, which according to him, is a  sort of  an index  to para  16.  It  appears  that  an

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additional issue  regarding the allegation contained in para 16 was raised in the High Court in the following terms:           "Whether any allegations of corrupt practices have      been made  in the  petition against Sarva Shri Kali Das      Batish  and   Puran  Chand  Sood  who  were  admittedly      candidates at the election. If so, to what effect ?"      However, this additional issue was later on not pressed on behalf  of the  respondent and  it was  conceded that the court may  take it  as established  that no  allegations  of corrupt practices were made against Batish and Sood. In this view of  the matter,  the High  Court without going into the issue decided  it against the appellant. The counsel for the appellant submitted that once an issue was raised it was not open to  the parties to make any concession as, according to law, the  issue had  to be  tried whether pressed or not. In support of  his contention,  the earned counsel relied on a, decision of this Court 423 in Udhav  Singh v.  Madhav Rao  Scindia where the Court made the A  following observations  while interpreting section 82 of the Act:-           "Behind this  provision is a fundamental principle      of  natural   justice  viz.,   that  nobody  should  be      condemned unheard. A charge of corrupt practice against      a candidate,  if  established,  entails  serious  penal      consequences It  has the  effect of  debarring him from      being a  candidate at  an election  for a  considerably      long period  That is  why, s.82(b) in clear, peremptory      terms, obligates  an  election-petitioner  to  join  as      respondent to  his petition,  a candidate  against whom      allegations of  any corrupt  practice are  made in  the      petition.  Disobedience  of  this  mandate,  inexorably      attracts s.86 which commands the High Court, in equally      imperative language, to.-           "dismiss  an  election  petition  which  does  not           comply with the provisions of section 82."           The  respondent  cannot  by  consent,  express  or      tacit,  waive  these  provisions  or  condone-  a  non-      compliance  with   the  imperative   of  s.82(b)   Even      inaction,  latches   or  delay   on  the  part  of  the      respondent in  pointing out  the lethal  defect of non-      joinder cannot  relieve  the  Court  of  the  statutory      obligation cast  on it  by s.86.  As soon  as the  non-      compliance with  s.82(b) comes  or is  brought  to  the      notice of  the court,  no matter  in what manner and at      what stage,  during the pendency of the petition, it is      bound to dismiss the petition in unstinted obedience to      the command of s. 86."      This  Court  further  hold  that  once  allegations  of corrupt practice  were  made  against  a  candidate  it  was incumbent on  the election petitioner to join him as a party and failure  to  do  so  would  automatically  lead  to  the dismissal of his petition under s. 86. There can be no doubt that this  is the combined effect of s.82(b) and s.86 of the Act. I  But before  s.82(b) or  s.86 could come into play in the instant  case, ’  it must  be proved  whether or not the allegation of corrupt practices made against Batish and Sood amounted  to   corrupt  practice   as  contemplated  by  the provisions of  s.123 of the Act. It was thus argued that the allegations made  in para  16 come within s.123(2) which may be extracted thus 424           " 123.  Corrupt practices-The  following shall  be      deemed to be corrupt practices for the purposes of this      Act:-

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         (2) Undue influence, that is to say, any direct or      indirect interference  or attempt  to interfere  on the      part of.  the candidate  or his  agent, or of any other      person  with  the  consent  of  the  candidate  or  his      election agent  with the free exercise of any electoral      right :"      It is  manifest that  in  order  that  an  act  of  the candidate concerned  may amount  to an allegation of corrupt practice, it  must be  committed  either  by  the  candidate himself, his  agent Or  by any other person with the consent of  the  candidate  or  his  election  agent.  In  order  to determine whether  the  ingredients  of  s.  123  have  been fulfilled in  the present  case, it may be necessary to wade through the  contents of  para 6,  the relevant  portions of which may be extracted thus:           "16. That  after the conclusion. Of the meeting, a      rally was  organised by  the respondent,  which  passed      through the  main bazar  of Simla  town. In  the  rally      also, the  following. .  persons of the Bhartiya Janata      Party participated: ...........................................................      6. shri Kali. Dass Batish      16. Shri Puran Chand Sood      The persons  in  the  rally  including  the  respondent raised the following slogans :-      ‘INDIRA KAISI HAI PHULAN DEVI JAISI HAI’      ‘DESH KA NETA KAISA HO ATTAL BIHARI JAISA HO’      ‘JITEGA BHAI JITEGA DAULAT RAM CHAUHAN JITEGA’ .. , . .      The  aforesaid   libelous  slogans  and  displaying  of pamphlets  were   made  to  alienate  the  voters  from  the petitioner."      An analysis  of the aforesaid extracts shows that there is no  i clear  and specific allegation-that Batish and Sood took active  part in  raising libelous slogan and displaying the pamphlets with the express 425 implied consent  of the  appellant or of his election agent. It is  common knowledge  that whenever there is a rally or a crowd  or  a  gathering,  a  number  of  persons  attend  or participate in  the same  but that  by itself would not give rise to  an irresistible  inference that their participation or presence  was at  the instance  of the  person  in  whose favour the  crowd gathered  or the  rally was organised. Mr. Shanti Bhushan  however stressed  the fact  that  the  words "persons in  the rally  including the  respondent raised the libelous slogan" would lead to an inevitable conclusion that the persons  who participated in the rally raised the slogan with the  express ar  implied consent  of the appellant. We, are, however,  unable to  draw this  inference because it is well settled  that an allegation of corrupt practice must be proved like  a criminal  charge  without  admitting  of  any doubt. C      In Haji C.H. Mohammad Koya v. T.K.S.M.A. Muthukoya this Court made the following observations:           "It is well settled by long course of decisions of      this Court  that such practices must be clearly alleged      with all  the necessary  particulars and  proved not by      the standard  of  preponderance  of  probabilities  but      beyond reasonable doubt "      In these  circumstances, therefore,  before s.82  could apply it  was incumbent  on the part of respondent to allege that the  appellant had  given his consent to Sood or Batish for raising  the slogan.  There is also no allegation in the passage, extracted  above, that  Batish or Sood had obtained the consent of the appellant or his election agent.

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    Realising  the   futility  and   the  frailty   of  his arguments Mr.  Shanti Bhushan  tried to  call into  aid  the averments made  in para  4 of  the  election  petition,  the relevant portion of which may be extracted thus:           "That the respondent, his election agent and other      persons with  the consent  of  the  respondent  or  his      election agent have committed several corrupt practices      with the  full knowledge and consent of tile respondent      and  his   election  agent,  which  have  prejudicially      affected  the   election   of   the   petitioner....The      catalogue  of   corrupt  practices   committed  by  the      respondent, his  election agent  and other persons with      the consent of the respondent and his election agent 426      is detailed hereinafter."      Even if  this allegation  is taken  at its  face value, there is no mention at all about Sood or Batish having taken the consent  of  the  appellant  for  indulging  in  corrupt practices. Strong  reliance was placed on the second part of the recitals  which disclose  that there  was a catalogue of corrupt practices  committed by  the appellant, his election agent and  other persons  as detailed  in the  petition. The learned counsel for the appellant wants us to read para 4 in conjunction  With   para  16  and  then  to  arrive  at  the conclusion that  libelous slogans  were shouted  by Sood and Batish with the consent of the appellant. We are however not in a  position to  accept this  somewhat complex  process of reasoning. In  our opinion,  such  a  disjointed  scheme  of averring particulars so that one has to read one part of the allegation with  another and then by joining the two produce a particular  result  to  infer  an  allegation  of  corrupt practice is  not contemplated by s. 123  of the Act an is in fact foreign  to  the  principle  of  giving  all  necessary particulars and  statement  of  facts,  viz.,  time,  place, manner, mode an the consent of the candidate or his election agent. Such an approach would naturally suffer from the vice of vagueness.  It is  even against the well settled rules of pleadings to  interpret or read such a serious allegation as that of  fraud by joining one portion of the allegation with another and  then connect  the head  of one with the tail of the other  in order  to present  a  composite  picture.  The danger of  making such  an approach  would really  amount to basing the  decision of  the court  on pure  conjectures  or speculation and  is against  the very spirit and tenor of s. 82(b) of the Act. This section contains a salutary provision which is  that nobody  should be  condemned unheard so as to amount of an infraction of the well settled practice of audi alteram partem  (rules of natural justice) and requires than allegation must be proved to the hilt in the presence of the person affected,  failing which  the election petition would stand dismissed. If such a consequence were to follow, it is obvious that the allegations must be interpreted as they are and not by adding or subtracting one from the  other.      Moreover, the  scheme followed  by the respondent would itself show  that the allegations in para 4 are not meant to be an  index or glossary for the recitals in para 16 because wherever other  corrupt practices  have been averred, it has been clearly  mentioned in  those very  averments  that  the consent of  the appellant or his election agent was obtained In para  16, however,  this  is  completely  absent.  For  - instance, in  para 18  where the respondent has made a clear allegation 427 regarding the slanderous campaign against him, he has in the clearest possible  terms  mentioned  that  these  acts  were

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committed by  the appellant,  his election agent and workers with his  tacit consent.  In this  connection, the  relevant portion of the averment may be extracted thus :           "That the  respondent, his  workers  and  election      agent did  not choose  to rest there and it appears had      deviser well-knit  and calculated  slanderous  campaign      against the  petitioner. The  respondent, his  election      agent and  workers with  his  consent  to  further  the      prospects  of   the  respondent   by  denigrating   the      petitioner in  the eyes  of people launched a character      assassination......  The  respondent,  this  agent  and      workers knew  that contents contain in Annexure ’G’ are      false an  the respondent  does not  believe  it  to  be      true."      If, therefore,  the intention  of the respondent was to allege corrupt practice as contemplate by law against Batish an Sood,  the averment  in para  16 should  have been either identical or of the nature of averments contained in para 18 (which is  in respect of other persons). This is yet another reason why  we cannot  accept the  argument  or  Mr.  Shanti Bhushan that  the averments  of par 16 must be read with the averments made in para 4.      In Samant N. Balakrishna etc. v. George Fernadez & Ors. this Court pointed out thus :           "But the  corrupt practices  are  view  separately      according as  to who  commits  them.  The  first  class      consist of corrupt practices committed by the candidate      or his  election agent or other person with the consent      of the  candidate or  his  election  agent.  These,  if      established, void  the  election  without  any  further      condition being fulfilled.      ....      ...       ....      ...           In the  scheme of  election law  they are separate      corrupt practices  which cannot  be said to grow out of      the  material   facts  related   to   another   person.      Publication of  false statements  by an  agent  is  one      cause of  action,   publication of  false statements by      the candidate is quite a different cause 428      of action.  Such a  cause of  action must be alleged in      the material facts before particulars may be given. One      cannot   under the cover  of particulars of one corrupt      practice give  particulars of  a new  corrupt practice.      They constitute different cause off action.           Since a  single corrupt  practice committed by the      candidate, by  his  election agent or by another person      with the consent of the candidate or his election agent      is fatal to the election, the case must be specifically      pleaded and strictly proved. If it has not been pleaded      25 part  of the  material facts,  particulars  of  such      corrupt practice cannot be supplied later on.      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 selection for a period of six years, the allegations must be very strongly  and narrowly construed to the very spirit and letter of  the law.  In other  words, in order to constitute corrupt  practices,  the  following  necessary  particulars, statement  of   facts  and  essential  ingredients  must  be contained In the pleadings:-      (1)   Direct and detailed nature of corrupt practice as           defined in the Act, .      (2)   details of  every important  particular  must  be           stated giving  the time,  place, names of persons,

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         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.      A person  may,. due  to sympathy or on his own? support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the consent  given to  him by  the candidate or his election agent, the  same would  not amount  to a pleading of corrupt practice as  contemn 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 429 practice will irresistibly admit of no doubt or qualm. A      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. For instance, A, or in this  case Sood  or Batish, joined or participated or was present in  an election  rally or crowd and may have shouted slogans on  his  own  without  taking  the  consent  of  the candidate concerned,  this would  not be  a corrupt practice within the  meaning  of  s.123(2)  because  the  element  of consent is wholly wanting.      Applying these  tests to the averments made in para 16, the position is as follows: C      That Batish  and Sood  doubtless  participated  in  the rally and  may have  shouted libelous  slogans but  there is nothing to show that they were either the election agents or workers of  the  appellant  or  that  they  participated  or shouted slogans  with the  express or implied consent of the candidate. D      In these  circumstances, it  is difficult to accept the argument of Mr. Shanti Bhushan that reading the averments in para 4  alongwith para  16, the irresistible inference would be that  Sood and  Batish had  shouted the  slogans with the consent of the appellant. E      The fundamental  core and  the  pivotal  basis  of  the argument of  the appellant  that in  view  of  the  specific allegations of  corrupt practices  having been  made by  the respondent and  yet Batish  and . Sood were not made parties to the  election petition  is not proved and, therefore, the requirement of  s.82(b) read  with s.86  of the  Act has not been fulfilled.  in this  case so  as to reject the election petition at the very behest.      We are,  therefore, in  agreement with the arguments of Mr. Bhandare, counsel for the respondent, that the averments contained in para 16 cannot by any stretch of imagination be construed to . constitute allegations of corrupt practice as envisaged by  s.123(2) of  the Act. The additional issue is, therefore, decided against the appellant.      For the  reasons given above, the preliminary objection raised by  Mr. Shanti  Bhushan is  overruled and  it is held that the election 430 petition was not liable to be dismissed in limine under S.86 of the  Act. The  appeal will  now be  posted for hearing on merits in respect of other issues. N.V.K.                    Preliminary objection over-ruled 431

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