ABHAY KUMAR MISHRA Vs. RAJENDRA SHUKLA

JUDGEMENT

(1.) Heard on I.A. No. 7170/2019, an application under order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') r/w Section 86 of the Representation of Peoples Act, 1951 (hereinafter referred to as "Act of 1951") filed by the respondent No. 1 for dismissal of this election petition.

(2.) Before considering the said application, I would like to mention brief facts of the case. The petitioner has filed this Election Petition under Sections 80, 80-A read with section 100(1) of the Representation of Peoples Act, 1951 (hereinafter referred to as "Act of 1951"), seeking declaration that the election of the Respondent No.1 from Constituency No. 74, Rewa in the Madhya Pradesh Legislative Assembly Election, 2018 (hereinafter referred to as "2018 Assembly Election") be declared as null and void. It is undisputed fact that the Petitioner contested election against the Respondent No.1 from Constituency No.74, Rewa in 2018 Assembly Election. It is also undisputed fact that results of 2018 Assembly Election were declared on 11.12.18 and the Respondent No.1 was declared as returned candidate from Constituency No. 74, Rewa. The petitioner has challenged election of the Respondent No.1 from aforesaid constituency on the ground that the latter secured votes by indulging in corrupt and illegal practices in violation of the Act of 1951 and Conduct of Election Rules, 1961 (hereinafter referred to as "Rules of 1961"), and has also violated Model Code of Conduct (hereinafter referred to as "MCC"). These violations are stated to have been committed by the Respondent No.1 mainly on account of (a) printing and distribution of unaccounted high quality pamphlets (b) distribution of sweet packets, sarees and gift packets having cash worth Rs. 21,000/- (c) suppression of expenses worth Rs. 59 lakh which were incurred for making high definition audio visual multimedia (d) suppression of expenses incurred in publication by Samdariya Builders of a news item in Dainik Bhaskar, Rewa Edition at the behest of the Respondent No.1 (e) violation of MCC by placing hoardings and banners on public property (f) non-disclosure of bank account details and source of income in the nomination form (g) mismatch of copy of Form 17-C kept with the returning officer after voting with the copy issued to the candidate, at the time of matching before counting (h) mismatch of seal on Form 17-C and Electronic Voting Machine (hereinafter referred to as the "EVM"), and difference in counting of voting against votes casted, and (i) non- consideration of complaints being made by the Petitioner to the concerned officials, including those pertaining to discrepancies in EVMs.

(3.) In the said application, it has been contended that the election petition does not contain a precise statement of material facts. In particular, it has been contended that the said statement in support of allegations as regards unaccounted high quality pamphlets, printing and distribution has not been made. It has further been contended that the petition suffers from non-compliance of section 83(1)(b) of the Act of 1951, as material facts of corrupt practices including names of the parties said to have committed corrupt practice date and place of commission have not been mentioned. It has further been contended that petition has not been verified since source of information has not been disclosed therein. It has further been contended that there is non-compliance of section of sub-section (1) of section 83 of the Act of 1951 and rule 94-A of the Rules of 1961 as the petition is not accompanied with affidavit in prescribed form supporting allegations of corrupt practices and particulars. In this regard, it has been contended that since allegation as regards printed high quality pamphlets pertains to violation of MCC and is corrupt practice covered under sub-section(6) of section 123 of the Act of 1951, said allegation should have been supported with prescribed affidavit and by a general affidavit. Further, no affidavit has been filed as regards allegations pertaining to bribery/distribution of gifts and grants, publicity by advertising of newspaper etc. It has also been contended that allegations made in the petition are vague and lacks material particulars. Further, copy of the petition, which has been served to the Respondent, has not been attested by the petitioner and as such, there is non-compliance of section 81(3) of the Act of 1951. Further, annexures filed with the petition does not bear signature of the Petitioner. The Respondent has also made reference to section 86 of the Act of 1951, wherein it is stipulated that an election petition will be dismissed for non-compliance of section 81 or section 82 or section 117. It has been contended by the Respondent that since exact security amount has not been stated by the Petitioner, there is non-compliance of section 117 of the Act of 1951. It has also been contended that the Petitioner has not pointed out any law which required the Petitioner to furnish details of bank a/c and source of income in affidavit filed under Rule 4-A of the Rules of 1961. In support of his submissions, the Respondent has relied on decisions given in Azhar Hussain vs. Rajiv Gandhi 1986 (Supp) SCC 315, Virender Nath Gautam vs. Satpal Singh & Others (2007) 3 SCC 617, Sushil Kumar Khatri vs. Sartaj Singh 2009(4) MPLJ 292, Hari Shanker Jain vs. Sonia Gandhi (2001) 8 SCC 233, V. Narayanswamy vs. C.P. Thirunavukkarasu (2000) 2 SCC 294, R.P. Moidutty vs. P.T. Kunju Mohammad & Another (2001) 1 SCC 481, Rajvinder Singh vs. Janmeja Singh & Others (2000) 8 SCC 191, Kankar Munjare vs. Gaurishankar 2008(1) MPLJ 418, Ram Sukh vs. Dinesh Aggarwal (2009) 10 SCC 541, Virender Nath Gautam vs. Satpal Singh & Ors (2007) 3 SCC 617.