IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL APPEAL NO.  6807  OF 2005

Sudarsha Avasthi       Appellant

 Versus

Shiv Pal Singh       Respondent

W I T H : CIVIL APPEAL NO.1108 OF 2007.

J U D G M E N T  A.K. MATHUR, J.

1. Both  these  appeals  involve  common  question  of

fact  and  law,  therefore,  they  are  disposed  of  by  this

common order. For convenient disposal of both the case, the

facts  given  in  C.A.No.6807  of  2005  (Sudarsha  Avasthi  v.

Shiv Pal Singh) are taken into consideration.

2. This civil appeal  is directed against the order

passed  by  learned  Single  Judge  of  the  High  Court  of

Judicature at Allahabad, Lucknow Bench, Lucknow by which

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three  election  petitions  were  disposed  of   one  by  the

appellant, Jitendra Nath Pandey and Sharad Tiwari by the

common order.  The appellant before us, Sudarsha Avasthi

filed an election petition being Election Petition No.3 of

2002  for declaration of Shiv Pal Singh’s election to the

Uttar  Pradesh  Legislative  Council  to  be  void  on  various

grounds. The appellant  was an elector in the Electoral

Roll  for  election  to  the  Legislative  Council  of  Uttar

Pradesh from Lucknow Division Graduates’ Constituency and

his name was mentioned at Serial No.1595 of Part No.190

Aliganj Ward Lucknow.  The election was held on 2.5.2002

and the result was declared on 7.5.2002. The respondent –

Shiv Pal Singh was declared elected.  The election of the

elected representative- respondent  was challenged on the

ground that the result of the election  had been materially

affected  by  improper  acceptance  of  nomination  paper  of

respondent. Respondent committed corrupt practice by giving

money directly to Ram Pratap Singh and Pradeep Kumar with a

view to induce them to contest as candidates in the said

election.  The respondent also committed corrupt practice

by giving money to S.P.Singhal with the object of inducing

him  to  withdraw  his  nomination.   Lastly,  the  respondent

committed  corrupt  practice  of  procuring  assistance  in

furtherance  of his prospects in the election from  the

Additional  Commission  (Administration) , Lucknow  Division

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who  was  the  Assistant  Returning  Officer  in  the  said

election. A detailed affidavit was filed by the appellant

disclosing the material facts of the corrupt practice. The

Election petition was contested by the returned candidate-

the respondent, Shiv Pal Singh. It was pleaded on behalf of

the respondent that the election petition did not disclose

any  cause  of  action,  pleadings  are  vague,  frivolous  and

vexatious. The concise statement of material facts and the

full particulars of the allegations of corrupt practices

had not been disclosed. Therefore, the election petition

was  liable  to  be  dismissed  for  non-compliance  of  the

provisions of  Sections 82 & 83 of the Representation of

the People Act, 1951 ( hereinafter to be referred to as the

Act). An application was also filed under Order VI Rule 16

read with Order VII  Rule 11 of the Code of Civil Procedure

( hereinafter to be referred to as the C.P.C.) praying for

dismissal of the election petition.  The respondent moved

an  application  and  prayed  that  the  preliminary  issues

pertaining to the maintainability of the election petition

and the other that the election petition lacked material

facts  and disclosed no cause of action.  Two issues were

framed as preliminary issues which read as under:

“  1.  Whether  the  election petition  preferred  by the petitioner  is liable  to  be  dismissed  as  it  was

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presented  before  the  Registrar  and  not before  the  Judge  of  the  High  Court dealing with the election matter ?

2. Whether  the  election petition deserves to be dismissed as it does not disclose any cause of action and material  facts  and  the  particulars  are lacking as alleged at this stage ?

It was also referred by learned Single Judge that during

the course of the proceedings, only learned counsel for the

respondent-  Shiv  Pal  Singh  in  Election  Petition  No.3  of

2002 and the appellant in person submitted their arguments

on the preliminary issues as reproduced above.  No issues

were framed nor any arguments were advanced in the other

two  election  petitions.  Therefore,  learned  Single  Judge

observed that the order passed in election petition No.3 of

2002  will  have  no  bearing  on  the  other  two  election

petitions.  

3. So far as the issue No.1 was concerned, learned

Single Judge after review  of the pleadings, held that it

was  wrong  to  say  that  the  election  petition  was  not

properly represented. So far as issue No.2 was concerned,

learned  Single  Judge  after  review  of  pleadings  and

arguments  made  in  the  petition  came  to  the  following

conclusion.

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“ The long and short of above discussions  is  that  the  petitioner suppressed the material facts which could disclose  the cause of action and there being  no  cause  of  action,  which  might have accrued to him, I am of the decisive opinion   that  this  election  petition being  devoid  of  merit  deserves  to  be dismissed.”

4. Incidentally, it may be mentioned that the tenure

of the present office of Legislative Council  has already

expired  and new election has already been ordered and they

were  held  during  the  pendency  of  this  petition  and  the

results are awaited.  Therefore, it was contended on behalf

of the respondent that it is purely an academic issue as

the fresh election has already been held and the term of

the present office is already over. Therefore, no useful

purpose will be served in going into the merit of the case.

The  appellant  submitted  that  he  has  made  serious

allegations of corrupt practice and in case he succeeds in

establishing  that  there  was  corrupt  practice  then  the

incumbent could be  debarred from contesting the election.

Therefore, the appellant insisted that the  civil appeal

should be decided on merits.

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5. We  have  heard  the  appellant  in  person  and

learned counsel for the respondent and perused the record.

So far as issue No.2 is concerned, whether the election

petition deserves to be dismissed as it does not disclose

any cause of action and material facts and the particulars

are lacking. In order to appreciate the contention we may

refer  to  necessary  provisions  of  he  Act  pertaining  to

pleadings.  Section 83 of the Act says what should be the

contents of the election petition. Section 83 of the Act

reads as under :

  “ 83. Contents of petition.- (1) An election petition-

(a) shall  contain  a concise  statement  of the material  facts on which the petitioner relies;

(b)  shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the  parties  alleged  to  have  committed such  corrupt  practice  and  the  date  and place  of  the   commission  of  each  such practice; and

© shall  be  signed  by  the petitioner  and  verified  in  the  manner laid don in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

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Provided  that  where  the petitioner alleges any corrupt practice, the petition shall also be accompanied by an  affidavit  in  the  prescribed  form  in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to be petition shall also be signed by the petitioner  and  verified  in  the  same manner as the petition.”

As per Section 83 of the Act, it is the duty of the person

who files the election petition and levels the allegation

of corrupt practice, he has to disclose the material facts

on which he relies and that should  set forth  the full

particulars  of  a  corrupt  practice  that  the  petitioner

alleges  including  the  full  statement  as  far  as  possible

disclosing  the  names  of  the  parties  alleged  to  have

committed such corrupt practice and the date and place of

commission  of  each  such  practice  and  the  same  shall  be

filed by the petitioner and verified in the manner as laid

down in the Code of Civil Procedure. Apart from this, he

has to file an affidavit in prescribed form in support of

the  allegation  of  such  corrupt  practice  and  he  should

disclose the particulars thereof. If he wants to rely on

any document then   it should be annexed to the petition

signed by the petitioner and verified in the same manner as

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the petition. Section 123 of the Act deals with the corrupt

practice.  What  shall  be  the  corrupt  practice  have  been

enumerated  in Section 123 of the Act, like; bribery which

has  been  defined  that  any  gift,  offer  or  promise  by  a

candidate  or  his agent or  by any other  person with the

consent  of  a  candidate  or  his  election  agent  of  any

gratification, to any person whomsoever, with the object,

directly or indirectly of including a person to stand or

not to stand as, or to withdraw or not to withdraw from

being a candidate at an election or an elector to vote or

refrain from voting at an election, or as a reward to a

person  for  having so stood  or not stood,  or for having

withdrawn or not having withdrawn his candidature; or an

elector  for  having  voted  or  refrained  from  voting.

Therefore,  the  detailed  particulars  are  required  to  be

given that how a person is being bribed by various modes.

All  these  particulars  have  to  be  given  in  the  manner

provided in Section 83 of the Act.  

6. Now,  keeping  in  background  these  provisions  we

may advert to the facts that what were the pleadings made

by the appellant in his election petition and disclosure

made  therein.  So  far  as  the  question  of  nomination  is

concerned,  the  appellant  in  person  has  not  seriously

agitated because he submitted that the election was held

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and that the term has almost come to an end. Therefore, he

concentrated primarily on the question of corrupt practice

disclosed by him  in his election petition. The appellant

tried to persuade us that sufficient material particulars

have been disclosed and the view taken by learned Single

Judge  that  sufficient  material  particulars  were  not

disclosed  was  not  correct.   Therefore,  what  are  the

material  particulars  disclosed  by  the  appellant  in  his

election  petition  have  to  be  considered.  So  far  as  the

allegation of corrupt practice is concerned, the same are

contained in paragraph 5 B, C & D of the election which

read as under :

“  5  B  Because  the  Returned Candidate  Respondent  No.1  committed  the corrupt  practice  of  Bribery  for gratification  (  i.e.  giving  money) directly to induce Respondent No.2 and 3 to stand as candidates in the aforesaid election.

C.  Because  the  Returned candidate, Respondent No.1 committed the corrupt  practice  of  Bribery  by  giving money to Respondent No.4 with object of inducing directly the Respondent No.4 to withdraw  from  the  contest  from  the aforesaid election.

D.  Because  the  Returned Candidate  the Respondent No.1 committed

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the  corrupt  practice  of  procuring assistance  for  the  furtherance  of  his prospects in the aforesaid election, from the  Additional  Commissioner (Administration),  Lucknow  Division,  Shri A.K.Mishra,  who  was  also  the  Assistant Returning  Officer  in  the  aforesaid election,   and  wrongly  allowed  an application  of  the  Respondent  No.1  for correction  of  his  name  on  the  ballot paper  in  violation  of  the  applicable statutory provision and disallowed, with utter  disregard  to the directions  given by  the  Election  Commission  of  India  to the  Returning  Officers for dealing  with such applicants, a similar application of Km.  Vibha  Avasthi, another candidate  to the aforesaid election, on the basis of extraneous material privately supplied by the Respondent No.1 to the said Assistant Returning Officer.”

So far as the ground B is concerned, the allegations have

been set out in paragraph 16 and the relevant allegations

start from paragraphs 19 and 20  which read as under :

“  19. The  Respondent  No.2 Ram Pratap Singh. S/o Late Ram Lal Singh is real brother of the Respondent No.1. The   Respondent  inducing  directly Respondent No.2 to stand as a candidate in the aforesaid election. On 11.04.2002

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at  about  12.45  p.m.  gave  Rupees  Ten Thousahd  (Rs.10,000.00)  to  Respondent No.2  inside  the  Court  room  of  the Commissioner Lucknow Division, for filing his (i.e. of Respondent No.2) nomination papers  to  become  a  candidate  in  the aforesaid  election  to  U.P.Legislative Council from Lucknow Division Graduates’ Constituency.  The  Respondent  No.2 thereafter  deposited  the  security  money and  filed  his  nomination  papers  before the  Assistant  Returning  Officer  in  the Court room of the Commissioner, Lucknow, in presence of the Respondent No.1.

20. That  Respondent  No.1,  while  inducing Respondent  No.3  directly  to  stand  as  a candidate  in  the  aforesaid   elect6ion,  on 11.04.2002 at about 1.00 PM gave Rupees Ten Thousand  (Rs.10,000.00)  to  Respondent  No.3 Pradeep  Kimar,S/o  Late  Behari  Lal  in  the Verandah which is outside the court room of the  Commissioner,  Lucknow  Division,  for filing  his  (i.e.  of  Respondent  No.3) nomination  papers  to  become  a  candidate  in the aforesaid election to the Uttar Pradesh Legislative Council from the Lucknow Division Graduates’  Constituency.   The  Respondent No.1,  thereafter,  delivered  the  nomination papers to the Respondent No.3 and made him to put his signature on them at the table inside the court room of the Commissioner, Lucknow Division,  while  the  Respondent  No.1  was

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standing  by his side indicating the places for  putting  the  signatures.  The  Respondent No.3 thereafter deposited the security money and  filed  his  nomination  papers  before  the Assistant Returning Officer in the courtroom of Commissioner, Lucknow Division. “

So far as the allegations contained in Paragraph 5 C are

concerned,  those  are  contained  in  paragraph  21  onwards.

Relevant allegations are in paragraphs 23 and 24 which read

as under :

“  23.  That  Respondent  No.4 S.P.Singhal  S/o  Ram Chandar Singhal  had filed his nomination paper on 06.04.2002 in   the  aforesaid  election  and  his nomination  papers  were  found  valid  and accepted  by  the  Returning  Officer  on 12.04.2002.

24.     That Respondent No.1 gave Rupees Thirty Thousand  (Rs.30,000.00)  to  Respondent  No.4 inside  the  compound  of  the  Commissioner’s Office (Lucknow Division) near the exit gate, on 15.04.2002 at about 2.00 p.m. to withdraw from  being  a  candidate  at  the  aforesaid election.  Thereafter,  the  Respondent  No.4 withdraw  his  candidature  by  giving  Notice  in writing addressed to the Returning Officer on 15.4.2002.”

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So far as the allegations contained in Paragraph 5 D, those

are  set  out  at  paragraph  25  onwards.  Relevant  portions

contained in paragraphs 27 to 29 which read as under :

“ 27.   That on 15.04.2002 at 2.25 P.M. the petitioner had submitted an application  from  Km.Vibha  Avasthi,  a candidate in the aforesaid election, for addition  of  her  popular  name  on  the ballot  paper,  by  also  including  her alias”Dr.Vibha  Harikrishna  Avasthi”,  and at that time the Respondent No.1 and his counsel  were  pleading  before  the Assistant  Returning  Officer  Shri A.K.Mishra for allowing to move a third application for correction of his name in a manner as to distance/distinguish  it on the ballot paper  from the other two candidates  with similar name viz. Shiv Pal  Singh  and  the  Petitioner  tried  to object  to  such  a  request,  which  was improper  and  beyond  the  scope  of  the provision in this regard, but a visibly annoyed Assistant Returning Officer Shri A.K.Mishra  advised  the  Petitioner  to confine  his  submissions  on  the application moved by the petitioner, but when  requested  to inform the  objection, if any, or the reasons of dissatisfaction of  the  Returning  Officer  as  to  the genuineness  of  the  request,   the  said Assistant  Returning  Officer  announced

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that time for withdrawing the nominations and  making  applications  was  over,  and left  the  room  without  pronouncing  any decision on the applications before him.

28. That at about 3.45 p.m. on the same day, the petitioner went to the chamber of the Assistant  Returning  Officer  Shri A.K.Mishrpa, the doors of his room were half  closed, and the petitioner was not allowed entry by the home guard on duty outside  the  room,  informing  that  the Additional  Commissioner  was  busy  with another  candidate  and  while  the petitioner  was  waiting outside his  room he could hear a conversation inside the room,  with  Mr.A.K.Mishra  inquiring  from Mr.Raees,  the  genuineness  of  a  sample ballot paper given by S.P.Singh, and the reply was in affirmative.

29. That  thereafter  the  doors  of  the  room opened  and  the  Petitioner  saw   the Respondent  No.1  and  his  counsel  coming out  of  room  bowing   and  profusely thanking  the  ARO  Shri  A.K.Mishra;  and then  the  petitioner   was  allowed  entry inside  the  room  of  Shri  A.K.Mishra  and saw Mr.Raees Ahmad, the Senior Clerk of Lucknow District Election Office sitting inside the room and when the Petitioner asked  the fate of the application moved by  him  on  behalf  of  Km.Vibha  Avasthi, Shri A.K.Mishra the ARO replied that the

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same  was  rejected,  but  refused  to  give reasons for his decision, even on asking by the Petitioner.”

Learned  Single  Judge  has  taken  into  consideration  these

grounds  of  corrupt  practice  along  with  the  allegations

contained in the election petition as reproduced above and

came to the finding that these all appear to be cock and

bull story. It was observed that it is not believable that

Ram Pratap Singh who is the real brother of the respondent

would accept illegal gratification in public view, that too

inside the Court room of the Commissioner. It was further

observed that the appellant did not disclose the name of

any  witness   who  was  present  inside  the  court  room  or

outside when the money was  handed over to the brother of

the respondent. Similarly on the analogy that the theory of

giving  Rs.30,000/-  as  bribe  to  the  Respondent  No.4  in

office of  Commissioner appears to be  nothing but figment

of imagination. Lastly regarding ground D it was observed

that Ku. Vibha Avasthi wanted some alteration in her name.

She did not move any application for addition of surname of

her father. But the copy of this application for alteration

of the name was not filed and it was deliberately concealed

that he was the agent of Kumari Vibha Avasthi and it was

also  found  that  it  is  difficult  to  understand  when  the

Office of the Assistant Commissioner cum Returning Officer,

Shri A.K.Mishra was cordoned of by the Home Guards  how did

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he enter inside the room  of Shri A.K.Mishra and it is

unbelievable that the respondent went inside the room of

Shri A.K.Mishra and influenced him in one way or the other

and secondly it was also held that it was not wrong on the

part of the candidate to have entered the office of Shri

A.K.Mishra  and   it  is  difficult  to  believe  that  other

person standing outside could know what transpired between

the  Officer  and  the  person  inside.  Therefore,  learned

Single Judge found that this  is nothing but a cock and

bull story.  On the basis of these pleadings learned Single

Judge ultimately concluded that there was no material facts

disclosing the cause of action and consequently,  dismissed

the election petition.

7. The election petition is a serious matter  and it

cannot be treated lightly or in  fanciful manner  nor is it

given to a person  who uses this as a handle for vexatious

purpose. The allegations made in the petition as disclosed

in the election petition appear to us to be totally a cock

and bull story.  We are in agreement with the view taken by

the learned Single Judge that a brother will give a sum of

Rs.10,000/-  in  the  office  of  the  Returning  Officer  i.e.

Assistant  Commissioner  for  appearing  in  the  election  or

contesting the election or a sum of Rs.30,000/- to another

candidate for withdrawing in full public view of all and

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sundry.  On the face of it appears to be unbelievable and

these  allegations  have  been  alleged  in  order  to  make  a

ground for some how or the other to put pressure on the

respondent.  Learned  Single  Judge  after  review  of  the

allegations  contained  therein  has  rightly  concluded  that

these allegations are not precise allegations so as to show

that  these  are  serious  allegations  to  be  tried  in  the

election petition. Learned Single Judge has gone through

all these allegations  and it also appears to us to be most

unbelievable and impracticable sequence of events.  It is

easy  to  allege  without  giving   the  detail  particulars

whether the  whole thing transpired in a hearing distance.

We are in full agreement with the view taken by  learned

Single Judge and we are of opinion that the learned Single

Judge  has  correctly  appreciated  that  this  case  lacks  in

particularity  any allegation of bribery as contained in

Section 123 read with Section 83 of the Act.

8. The  appellant  in  person   has  taken  us  through

various  decisions  of  this  Court.  The  followings  are  the

list of cases cited by the appellant.

i) AIR 1982 SC 1559 Roop Lal Sathi v. Machhattar Singh

ii) (1991) 3 SCC 375 F.A.Sapa & Ors. v. Singora & Ors.

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iii) (1999) 4 SCC 274 T.M.Jacob v. C.Poulose & Ors.

iv) (2004) 11 SCC 196 Sardar Harcharan Singh Brar v. Sukh Darshan Singh & Ors.

v) (2005) 13 SCC 511 Harkirat Singh v. Amrinder Singh

9. No useful purpose will be served by referring to

all  these  cases.  The  ratio  of  all  these  cases  is  the

election petition should contain the allegation of bribery

in a concise manner  with material particulars. Material

particulars disclosed in the present as mentioned above,

are not sufficient to be gone into for trial. We are in

full agreement with the view taken by learned Single Judge.

Therefore, we find no merit in the appeal and the same is

dismissed. No order as to costs.

Civil Appeal No.1108 of 2007 10. The election petition before the High Court was

dismissed for want of prosecution as nobody appeared. The

learned Judge has recorded in his order that the matter was

adjourned number of times and nobody appeared. Therefore,

it  is  not    necessary  to  restore  this  petition  as

petitioner  was  not  serious  and  present  term  has  already

expired. This appeal is dismissed with no order as to costs.

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       ……………………………….J [A.K.MATHUR]     

   ………………………… ……J New Delhi,       [ALTAMAS KABIR] May 16, 2008.

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