- (1.) SUNIL Ambwani, J. This is an application under Order VII Rule 11 Code of Civil Procedure, 1908 as amended (in short CPC) read with Section 86 (1) of the Representation of the People Act, 1951 (in short, the Act) dated 19-8- 2002, with a prayer to dismiss the election petition, as it does not disclose the cause of action as also the material facts and particulars, and on the ground that the election petition has not been filed in compliance with Section 83 of the Act. The application is supported by the affidavit of respondent No. 1, the elected candidate. The election petitioner has filed his objections to the application on 21-11-2003. The replication was filed on 7-12-2002.
(2.) THE applicant-Dr. Narendra Kumar Singh Gaur, was declared elected to the Uttar Pradesh Legislative Assembly from Allahabad (North) Assembly Constituency on 24-2-2002, in the elections notified on 16- 1-2002, for which the polling took place on 21-2- 2002, with 30187 votes. THE election petitioner Shri Anugrah Narain Singh obtained 25976 votes. The election petitioner has challenged the election on ground Nos. (i) to (viii), set out in paragraph 4 of the election petition filed on 8-4-2002, of which the concise statements of material facts is stated in the election petition from paragraph 6 to 50. The allegations in paragraph 4 of the election petition are as follows: " (4) That the election of respondent No. 1 (Dr. Narendra Kumar Singh Gaur) is void on the following grounds: (i) Because respondent No. 1 (Dr. Narendra Kumar Singh Gaur) obtained and procured and abetted to obtain and abetted to procure the assistance of gazetted officer for the furtherance of prospects of his election from Sri Santosh Kumar Srivastava who was in the service of the State Government as Gazetted Officer as also similar such gazetted officers and thereby respondent No. 1 committed corrupt practice as contemplated under Section 123 of the R. P. Act. (ii) Because respondent No. 1 (Dr. Narendra Kumar Singh Gaur) obtained and procured and attempted to obtain and procured the services of Government gazetted officers for the furtherance of the prospects of his election from gazetted officers, members of police force, the revenue officers for the furtherance of his election and thereby committed corrupt practice as contemplated under Section 123 (7) of the Act. (iii) Because respondent No. 1 (Dr. Narendra Kumar Singh Gaur), his agents and workers with the consent of respondent No. 1 committed undue influence upon the voters threatening them to cast votes in his favour since the entire developmental activities in the constituency have been done only by him and by no other person and have been made during his regime of MLA and Minister and the voters should vote for him alone and in case they do not vote for him, then the entire developmental activities in the constituency will come to an end and will be stopped and, as such, thereby the respondent No. 1 interfered with the free exercise of electoral rights of the voters of the Allahabad North Assembly constituency and thereby committed the corrupt practice of undue influence as contemplated under Section 123 (2) of the Act. (iv) Because the result of the election was materially affected by improper acceptance of invalid votes in favour of respondent No. 1 (Dr. Narendra Kumar Singh Gaur) and improper rejection of the valid votes cast in favour of petitioner. (v) Because the result of the election has been materially affected so far as the returned candidate is concerned by corrupt practice committed in the interest of returned candidate by his election agent, agents and workers. (vi) Because the election of respondent No. 1, Dr. Narendra Kumar Singh Gaur, is liable to be set aside and declared void on the ground that he committed corrupt practice of undue influence by directly and indirectly interfering with the free exercise of the electoral right as provided under Section 123 (2) of the Act. (vii) Because the election of respondent No. 1, Dr. Narendra Kumar Singh Gaur, is liable to be set aside and declared void on the ground that he committed corrupt practice under Section 123 (6) of incurring and authorising of expenditure in contravention of Section 77 of the Act inasmuch as he has incurred expenditure in excess of prescribed maximum limit of Rs. 6 lacs as fixed under notification No. 7 (32)/97- Leg. II, dated 31st December, 1997, issued by the Government of India, Ministry of Law and Justice, in exercise of powers conferred by Section 169 of the Act after consultation with the Election Commission of India. (viii) Because the election of respondent No. 1, Dr. Narendra Kumar Singh Gaur, is liable to be set aside and declared void on the ground of his committing corrupt practice of obtaining the assistance of Sri Santosh Kumar Srivastava, Public Relation Officer to the Sugarcane Minister and a gazetted officer under the service of the State of U. P. For the furtherance of the prospects of his election as contemplated under Section 123 (7) of the Act. "
(3.) THE election petition was permitted to be amended by Court's order dated 18-11-2003, on an application No. 164579 of 2003, carried out in the petition on 20-11-2003. THE concise statement of material facts supporting the grounds taken as above and relied upon by the election petitioner are detailed in the election petition as follows: Para 4 (i) para 15, 33 (amended) and 34 para 4 (ii) para 19 to 32, 43 and 46 para 4 (iv) para 35, 43, 44, 45, 46 para 4 (v) Schedule b para 4 (vi) para 19, 25, 26, 27 and 30 para 4 (vii) para 31 and 33 para 4 (viii) Para 19 to 32, 43 and 46 Shri R. P. Goel assisted by Shri Manish Goel appearing for respondent No. 1 the elected candidate, submits that the election petition served upon respondent No. 1 is not the true copy of the petition, attested by the petitioner. It does not bear the name and designation of the Oath Commissioner before whom it was sworn in Form 25 under Rule 94-A of the Conduct of Election Rules, 1961. It does not contain the stamp of the Oath Commissioner nor the details about its affirmation. The Schedules-A, B and C, in the election petition have not been verified and duly sworn and thus the election petition is liable to be dismissed for non-compliance of mandatory provisions of Sections 81 (3) and 83 (1) (c) of the Act.;