NAVJOT SINGH SIDHU Vs. OM PRAKASH SONI & ORS
REPRESENTATION OF THE PEOPLE ACT, 1951
Section 77 - Account of election expenses and maximum thereof
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10353 of 2016, Judgment Date: Oct 26, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10353 OF 2016
(Arising out of SLP (C) No.14912 of 2011)
NAVJOT SINGH SIDHU ...APPELLANT
VERSUS
OM PARKASH SONI & ORS. ...RESPONDENTS
J U D G M E N T
RANJAN GOGOI,J
1. Leave granted.
2. The appellant before this Court is the returned candidate in the
election held on 13th May, 2009 for the 02-Amritsar Parliamentary
Constituency. The election was challenged in E.P. No.3 of 2009 before the
High Court of Punjab and Haryana at Chandigarh. The appellant, as the
respondent in the Election Petition, had filed an application under Order
VI rule 16 and Order VII rule 11 of the Code of Civil Procedure, 1908 for
dismissal of the election petition contending that on account of
deficiencies in the pleadings no triable issue(s) is disclosed to justify a
regular trial of the allegations made. According to the appellant the
election petition, in its entirety, had failed to disclose any cause of
action whatsoever. Though some relief (details of which need not be
noticed) was granted to the appellant by the High Court, three broad
categories of allegations contained in the election petition were held to
disclose triable issues. Hence a regular trial of the same was ordered by
the High Court by the order under challenge. Aggrieved, this appeal has
been filed.
3. We have heard the learned counsels for the parties.
4. The three broad categories of allegations which, according to the
High Court, gave rise to the triable issues may now be dealt with in
seriatim.
5. The first is with regard to incurring of expenditure in contravention
of the limit prescribed under Section 77(3) of the Representation of the
People Act, 1951 (hereinafter referred to as “R.P. Act”). The gravamen of
the allegation on the aforesaid score is as follows:
According to the election petitioner, the appellant had, in his
return of election expenses, shown a total expenditure of Rs.17,03,665/-.
He had shown expenditure of Rs.3,31,054/- on account of campaign through
electronic/print media (including cable network). The election petitioner
has contended that the said return of expenditure is not correct.
6. In paragraph 9 of the Election Petition the rates of advertisement in
different newspapers like ‘The Daily Ajit’, ‘Punjab Kesari’, ‘Dainik
Bhaskar’, ‘Jag Bani’ have been shown along with a statement that during
election time the said charges are 25% more. In paragraph 10 of the
election petition, the details of the advertisements published/issued by
the appellant in different newspapers during the period between 22nd April,
2009 to 13th May, 2009 are mentioned along with the details of expenditure
incurred. On the basis of the figures mentioned in paragraph 10 of the
Election Petition, it is contended that the actual expenses incurred by the
returned candidate on advertisements alone is Rs.32,88,845/- which is in
excess of the total prescribed limit of Rs.25,00,000/- (Rupees Twenty Five
lakh). In paragraph 11 of the Election Petition, the details of the
expenditure incurred by the returned candidate/appellant on advertisements
on local T.V. channels, etc. are also mentioned. The specific pleadings in
this regard as contained in paragraph 10 and 11 may set out herein below
for clarity:
“10. That the details of advertisements by Respondent No.1, the returned
candidate, in different newspapers and their expenses, during the period
from the date of his nomination i.e. 22.4.2009 to 13.5.2009 i.e. the date
of polling are as under:
|S. |Date of |Name of the|Page |Size of |Rate |Amount (In|
|No. |Publica-ti|Newspapers |No. |Advertise-| |Rupees) |
| |on | | |ment | | |
|1. |22.04.2009|Ajit |7 |22 x 12 = |180 |47,520 |
| | | | |204 | | |
|2. |22.04.2009|Dainik |2 |16.5 x |664 |2,02,686 |
| | |Bhaskar | |18.5 = | | |
| | | | |305.25 | | |
|3. |22.04.2009|Dainik |1 |24 x 12 = |166 |47,808 |
| | |Jagran | |288 | | |
|4. |22.04.2009|Tribune |3 |10 x 12 = |852 |1,02,240 |
| | | | |120 | | |
|5. |23.04.2009|Ajit |7 |a) 33 x 10| | |
| | | | |= 330 |90 |29,700 |
| | | | |(B/w) | | |
| | | | | | | |
| | | | |b) 20 x 14|180 |50,400 |
| | | | |= 280 | | |
| | | | | | | |
|6. |23.04.2009|Dainik |3 |25 x 32 = |747 |5,97,600 |
| | |Bhaskar | |800 | | |
|7. |23.04.2009|Punjab |1 |16 x 24.5 |225 |88,200 |
| | |Kesari – | |= 302 | | |
| | |Amr. | | | | |
|8. |24.04.2009|Jag Bani |2 |10 X 16 |87.5 |14,000 |
| | | | |(B/w) = | | |
| | | | |160 | | |
|9. |25.04.2009|Ajit |7 |12 x 9 = |180 |19,440 |
| | | | |108 | | |
|10. |25.04.2009|Punjab |2 |12 x 5 | | |
| | |Kesari | |(B/w) = 60|125 |7,500 |
|11. |26.04.2009|Ajit |7 |16.5 x 20 |180 |59,400 |
| | | | |= 330 | | |
|12. |26.04.2009|Jag Bani |1 |17 x 16 = |150 |40,800 |
| | | | |272 | | |
|13. |27.04.2009|Jag Bani |2 |8 x 3 (B) |87.5 |2,100 |
| | | | |= 24 | | |
|14. |28.04.2009|Ajit |7 |29 x 10 = |180 |52,200 |
| | | | |290 | | |
| | | | | | | |
|15. |28.04.2009|Dainik |2 |20 x 10 = |664 |1,32,800 |
| | |Bhaskar | |200 | | |
|16. |30.04.2009|Ajit | 7 |15 x 8 (B)|180 |21,600 |
| | | | |= 120 | | |
|17. |30.04.2009|Jag Bani |1 |10 x 12 = |150 |18,000 |
| | |(Local) | |120 | | |
| | | | | | | |
| | | |2 |a) 8 x 5 =|125 |5,000 |
| | | | |40 | | |
| | | | |b) 16 x 6 |125 |12,000 |
| | | | |= 96 | | |
| | | | |c) 16 x 6 |125 |12,000 |
| | | | |= 96 | | |
|18. |01.05.2009|Jag Bani |1 |20.5 x 9 =| | |
| | | | |184.5 |150 |27,675 |
| | | | | | | |
| | | |2 |a) 8 x 5 | | |
| | | | |(B) = 40 |87.5 |3,500 |
| | | | | | | |
| | | | |b) 16 x | | |
| | | | |6.5 (B) = |87.5 |9,100 |
| | | | |104 | | |
|19. |01.05.2009|Punjab |1 |20 x 9 = |225 |40,500 |
| | |Kesari | |180 | | |
|20. |02.05.2009|Ajit |7 |4 x 4 | | |
| | | | |(B/w) = 16|90 |1,440 |
| | | | | | | |
| | | |8 |16.5. x 12| | |
| | | | |= 198 |90 |17,820 |
|21. |02.05.2009|Jag Bani |2 |a) 8 x 5 | | |
| | | | |(B) = 40 |87.5.|3,500 |
| | | | | | | |
| | | | |b) 8 x 5 |87.5 | |
| | | | |(B) = 40 | |3,500 |
| | | | | | | |
|22. |03.05.2009|Jag Bani |2 |8 x 5 (B) |87.5 |3,500 |
| | | | |= 40 | | |
| | | | | | | |
|23. |04.05.2009|Ajit |11 |a) 8 x 6 | | |
| | | | |(B) = 48 |90 |4,320 |
| | | | | | | |
| | | | |b) 8 x 6.5| | |
| | | | |(B) = 52 |90 |4,680 |
| | | | | | | |
| | | | |c) 8 x 6.5| | |
| | | | |(B) = 52 |90 |4,680 |
| | | | | | | |
| | | | |d) 8 x 7 | | |
| | | | |(B) = 56 |90 |5,040 |
| | | | | | | |
| | | | |e) 8 x 9 | | |
| | | | |(B) = 72 |90 |6,480 |
| | | | | | | |
| | | | |f) 8 x 6 | | |
| | | | |(B) = 48 |90 |4,320 |
| | | | | | | |
| | | | |g) 8 x 7 | | |
| | | | |(B) = 56 |90 |5,040 |
|24. |04.05.2009|Jag Bani |1 |33 x 5 = | | |
| | | | |165 |150 |24,750 |
| | | | | | | |
| | | |2 |12 x 8.5 | | |
| | | | |(B) = 102 |87.5 |8,925 |
|25. |04.05.2009|Amr. Kesari|1 |33 x 5 = | | |
| | | | |165 |225 |37,125 |
| | | | |Party | | |
| | | | | | | |
| | | |2 |8 x 5 = 40|162.5|6,500 |
|26. |05.05.2009|Ajit |7 |33 x 8 (B)| | |
| | | | |= 264 |90 |23,760 |
|27. |05.05.2009|Jag Bani |2 |a) 8 x | | |
| | | | |5(B) = 40 |87.5 |3,500 |
| | | | | | | |
| | | | |b) 12 x | | |
| | | | |6.5 (B) = |87.5 |6,825 |
| | | | |78 | | |
|28. |06.05.2009|Ajit |7 |a) 33 x 13| | |
| | | | |(B) = 429 |90 |38,610 |
|29. |06.05.2009|Jag Bani |2 |a) 8 x 5 | | |
| | | | |(B) = 40 |87.5 |3,500 |
| | | | | | | |
| | | | |b) 8 x 6 | | |
| | | | |(B) = 48 |87.5 |4,200 |
|30. |07.05.2009|Ajit |7 |a) 12 x 7 | | |
| | | | |(B) = 84 |90 |7,560 |
| | | | | | | |
| | | | |b) 12 x 9 | | |
| | | | |(B) = 108 |90 |9,720 |
| | | | | | | |
| | | | | | | |
|31. |08.05.2009|Ajit |7 |33 x 13 | | |
| | | | |(B) = 429 |90 |38,610 |
| | | | | | | |
| | | |8 |8 x 10 (B)| |7,200 |
| | | | |= 80 |90 | |
| | | | | | | |
| | | | | | | |
| | | | | | | |
|32. |08.05.2009|Jag Bani |1 |33 x 9 (P)| | |
| | | | |= 297 |150 |44,550 |
| | | | | | | |
| | | |2 |a) 8 x 7 | | |
| | | | |(B) = 56 |125 |7,000 |
| | | | | | | |
| | | | |b) 8 x 10 | | |
| | | | |(B) = 80 |87.5 |7,000 |
| | | | | | | |
| | | | |c) 8 x 5 | | |
| | | | |(B) = 40 |87.5 |3,500 |
| | | | | | | |
| | | | |d) 8 x 5.5| | |
| | | | |(B) = 44 |87.5 |3,850 |
| | | | | | | |
| | | | | | | |
|33. |09.05.2009|Ajit |7 |a) 8 x 9 | | |
| | | | |(B) = 72 |90 |6,480 |
| | | | | | | |
| | | | |b) 8 x 5 | | |
| | | | |(B) = 40 |90 |3,600 |
| | | | | | | |
| | | | |c) 8 x 10 | | |
| | | | |(B) = 80 |90 |7,200 |
| | | | | | | |
| | | | |d) 33 x 8 | | |
| | | | |(P) = 264 |90 |23,760 |
|34. |09.05.2009|Jag Bani |3 |12 x 10(B)|100 |12,000 |
| | | | |= 120 | | |
|35. |10.05.2009|Ajit |1 |a) 12 x 9 | | |
| | | | |(B) = 108 |90 |9,720 |
| | | | | | | |
| | | | |b) 8 x 10 | | |
| | | | |(B) = 80 |90 |7,200 |
| | | | | | | |
| | | |7 |c) 16 x 12| | |
| | | | |(B) = 192 |90 |17,280 |
|36. |10.05.2009|Jag Bani |3 |12 x 10 | | |
| | | | |(B) = 120 |100 |12,000 |
|37. |11.05.2009|Ajit |8 |a) 12 x 8 | | |
| | | | |= 96 |180 |17,280 |
| | | | | | | |
| | | | |b) 20 x 10| | |
| | | | |= 200 |180 |36,000 |
| | | | | | | |
|38. |11.05.2009|Jag Bani |2 |a) 16 x 6 | | |
| | | | |(B) = 96 |87.5 |8,400 |
| | | | | | | |
| | | | |b) 24.5 x | | |
| | | | |8(B) = 196|87.5 |17,150 |
| | | | | | | |
|39. |12.05.2009|Ajit |7 |a) 16 x 19| | |
| | | | |= 304 |180 |54,720 |
| | | | | | | |
|40. |12.05.2009|Jag Bani |1 |33 x 9 = |150 |44,550 |
| | | | |297 | | |
| | | | | | | |
| | | |2 |a) 8 x 4 | | |
| | | | |(B) = 32 |125 |4,000 |
| | | | | | | |
| | | | |b) 8 x 4.5| | |
| | | | |(B) = 36 |87.5 |3,150 |
| | | | | | | |
| | | | |c) 12 x 9 | | |
| | | | |(B) = 108 |87.5 |9,450 |
|41. |13.05.2009|Ajit |7 |a) 8 x 5 | | |
| | | | |(B) = 40 |90 |3,600 |
| | | | | | | |
| | | | |b) 20.5 x | | |
| | | | |16 (B) = | | |
| | | | |328 |90 |29,520 |
|42. |13.05.2009|Jag Bani – |1 |a) 16 x 25| | |
| | |Local | |= 400 |150 |60,000 |
| | | | | | | |
| | | | |b) 12 x 12| | |
| | | | |= 144 |300 | |
| | | | |(Hang) |(H) |43,200 |
| | | | | | | |
| | | | |c) 4 x 5 =| | |
| | | | |20 |150 |3,000 |
| | | | | | | |
| | | | |d) 16 x 13| | |
| | | | |= 208 |150 |31,200 |
| | | | | | | |
| | | |2 |8 x 6 (B) | | |
| | | | |= 48 |87.5 |4,200 |
| | | | |TOTAL | |19,16,234 |
“11. The Respondent No.1, the returned candidate, also displayed an
advertisement of 70 seconds on Metro/Filmy channel and Movies channel of
Siti Cable/Digi Cable in Amritsar. The charges are Rs.825 for 30 seconds
on Metro/Filmy channel and Rs.900/- per 30 seconds on Movie Channel during
the period 22.4.2009 to 13.5.2009 between 8 AM to 10 P.M. The
Advertisement was displaced for 18 times on each channel. The details of
the same are as under:
|S. |Name of |Duration of|Rate/|Total|No. of |Amount |
|No. |Channel |clip (Sec.)|sec. |No. |times of | |
| | | |of |of |broadcast | |
| | | |Broad|days |per day | |
| | | |cast | | | |
| | | |(Rs.)| | | |
|1. |Metro/Film|70 |27.5 |22 |18 |762300 |
| |y | | | | | |
|2. |Movie |70 |30 |22 |18 |831600 |
| |TOTAL | | | | |15,93900” |
7. Shri Vikas Singh, learned Senior Counsel appearing for the appellant
has submitted that under the provisions of Rules of Procedure and Guidance
in the matter of Trial of Election Petitions Under Part VI of the
Representation of the People Act, 1951, as amended (Clause 12) and
specifically Form ‘B’ and Form ‘BB’ prescribed thereunder, it is necessary
for the election petitioner to enclose along with the Election Petition all
relied upon documents in the form(s) prescribed. In the present case, the
required information as per the forms prescribed had not been furnished by
the election petitioner. Shri Vikas Singh has further argued that under
Section 83 of the R.P. Act an Election Petition founded on allegations of
corrupt practice has to contain a concise statement of the material facts
and is also required to set forth full particulars of any corrupt practice
that the election petitioner alleges. In addition, an affidavit in the
prescribed form in support of the allegations of corrupt practice and the
particulars thereof is also required to be furnished. Relying on two
decisions of this Court i.e. Azhar Hussain vs. Rajiv Gandhi[1] and Ramakant
Mayekar vs. Celine D’Silva[2] it is argued that in the present case it was
incumbent upon the election petitioner to enclose with the Election
Petition photocopies of the relevant newspapers containing the
advertisements mentioned in paragraph 10 of the Election Petition. The
foundation of the Election Petition being the advertisements contained in
the said newspapers in the absence thereof the necessary cause of action to
justify a full-fledged trial would be absent and, therefore, the Election
Petition is liable to be dismissed at the threshold.
8. We have considered the aforesaid submission made on behalf of the
appellant. What is the meaning of the expression ‘material facts’ and
‘material particulars’ need not engage any further attention of the Court
in view of the long line of decisions/precedents available on the point out
of which illustratively reference can be made to the decision of this Court
in the case of Virender Nath Gautam vs. Satpal Singh and Ors.[3].
Paragraph 50 of the said decision in Virender Nath (supra), which is
extracted below, would highlight the distinction between the two
expressions.
“50. There is distinction between facta probanda (the facts required to be
proved i.e. material facts) and facta probantia (the facts by means of
which they are proved i.e. particulars or evidence). It is settled law
that pleadings must contain only facta probanda and not facta probantia.
The material facts on which the party relies for his claim are called facta
probanda and they must be stated in the pleadings. But the facts or facts
by means of which facta probanda (material facts) are proved and which are
in the nature of facta probantia (particulars or evidence) need not be set
out in the pleadings. They are not facts in issue, but only relevant facts
required to be proved at the trial in order to establish the fact in
issue.”
9. Virender Nath Gautam (supra) dealt with an Election Petition that did
not have any allegation of corrupt practice and therefore the contents
thereof were examined in the context of the requirement under Section 83
(1) (a) and not Section 83 (1) (b) of the Act of 1951. In case of an
Election Petition founded on allegations of corrupt practice not only the
‘material facts’ have to be pleaded but even the full particulars thereof
have to be furnished at the stage of filing of the Election Petition
itself. This is specifically provided for in Section 83(1)(b) of the R.P.
Act.
10. Reading the averments made by the election petitioner in paragraphs
10 and 11 of the Election Petition, extracted above, in our considered
view, it cannot be said that full particulars of the allegation of corrupt
practice have not been set out by the election petitioner. The dates on
which the advertisements had appeared; the particulars of the newspapers in
which such advertisements were published; the cost incurred for each type
of advertisement in each newspaper, have all been mentioned. When details
to the above extent have been mentioned in the Election Petition, it cannot
be said that full particulars as required under Section 83(1)(b) of the
R.P. Act have not been furnished by the election petitioner.
11. The insistence on furnishing photocopies of the newspapers alongwith
the Election Petition on the strength of the decisions of this Court in
Azhar Hussain(supra) and Ramakant Mayekar(supra) will now have to be dealt
with.
In Azhar Hussain(supra), the posters in question which were not
furnished along with the Election Petition, itself, contained the
ingredients of the corrupt practice alleged. Hence the failure of the
election petitioner to include the said posters as a part of the Election
Petition was held to be fatal. Similarly, in Ramakant Mayekar(supra) the
pleaded case of the election petitioner was that the returned candidate had
used posters, banners and wall-paintings canvassing for votes in the name
of Hindu religion. The election petitioner specifically averred that he had
taken photographs of the wall-paintings which, however, were not enclosed
to the Election Petition. The Election petitioner in the said case had
prayed for leave to produce the same at a later stage of the case. It is in
the above situation, namely, where the wall-paintings itself contained the
ingredients of the commission of corrupt practice alleged that the non-
furnishing of the same along with the Election Petition was held to be
fatal. The above is not the situation in the present case. We, therefore,
hold that the averments made with regard to election expenses in paragraph
10 and 11 of the Election Petition require to go for a full-fledged trial
and the appeal insofar as the aforesaid part of the decision of the High
Court has to fail.
12. In paragraphs 12 to 15 of the Election Petition, the respondent-
election petitioner, by giving details of expenditure incurred by the
appellant in connection with public meetings held on different dates and in
different venues, has contended that the expenses incurred on these public
meetings is much more than what has been shown in the return of election
expenses under the said head (Rs.1,83,466/-). While the details of the
meetings i.e. the time, date and venue are mentioned and so is the number
of persons who are claimed to have attended the meetings, we do not find
any basis as to how the election petitioner had arrived at the quantum of
expenses which he alleges to have been incurred by the returned candidate
in holding each of the said meetings. What are the source(s) of information
of the election petitioner with regard to the details furnished; whether he
has personal knowledge of any of the said meetings; who are the persons who
informed him of the details of such meetings; what is the basis of the
estimate of the number of persons present and the facilities (chairs etc.)
that were hired and the particulars of the refreshments served are nowhere
pleaded. All such particulars that are an integral part of the allegation
of corrupt practice alleged are absent.
In the absence of the aforesaid particulars, there can be no doubt that
insofar as the allegations made in paragraphs 12 to 15 of the Election
Petition is concerned, the same do not disclose any triable issue so as to
justify a regular trial of the said allegations. The allegations mentioned
in paragraphs 12 to 15, so far as commission of corrupt practice of
submission of false/incorrect return of election expenses is concerned,
are, therefore, struck off.
13. This will take the Court to the second category of allegations on
which the Election Petition is founded. The same is with regard to the
assistance allegedly received by the appellant, as the returned candidate,
from one Jagjit Singh Suchu. The specific case of the respondent-election
petitioner in the Election Petition filed is that Jagjit Singh Suchu was
posted as the Grid Executive Engineer, Amritsar and he is a gazetted
officer in the Punjab State Electricity Board. Shri Suchu was transferred,
at the instance of the appellant, as Additional Superintending Engineer,
East Division, Verka Circle, Amritsar which is a gazetted post in the State
of Punjab. It is also alleged that the returned candidate i.e. the
appellant had taken the help of Shri Suchu while he was working in the said
capacity so as to further the appellant’s election prospects. The detailed
pleadings in this regard are contained in paragraphs 17, 18, 19 and 20 of
the Election Petition. We have perused the said pleadings.
14. The contention advanced on behalf of the appellant is that the
aforesaid Jagjit Singh Suchu, on the pleadings of the election petitioner
himself, is admittedly a gazetted officer of the Punjab State Electricity
Board and, therefore, under the provisions of Section 123(7) of the R.P.
Act, prior to its amendment by Act 41 of 2009 with effect from 1st
February, 2010, the assistance of Jagjit Singh Suchu, even if obtained, did
not amount to corrupt practice inasmuch as the said person was not in
service of the Government.
15. The pleadings contained in paragraphs 17 to 20 of the Election
Petition makes it clear that it is alleged that while Jagjit Singh Suchu
was an officer of the Punjab State Electricity Board the appellant had got
him transferred to the post of Additional Superintending Engineer, East
Division, Verka Circle, Amritsar under the State of Punjab and that the
appellant had received assistance from him so as to further his election
prospects. The allegation in the Election Petition is that the post to
which Jagjit Singh Suchu was transferred from the Punjab State Electricity
Board was under the State Government and the assistance received by the
returned candidate from the said person is while he was rendering service
as Additional Superintending Engineer, namely, while he was performing the
duties in the State Government. If that be so, the aforesaid issue also
will have to go for a full trial as ordered by the High Court. The appeal
to the aforesaid extent will, therefore, have to be dismissed.
16. Insofar as the third allegation of the election petitioner is
concerned, we are of the view that it would not be necessary for us to deal
with the said question. The said allegation pertains to the action taken
by the Returning Officer on the complaint filed by the election petitioner
with regard to counting of votes. The election took place in the year
2009. The life of the House for which the election took place has long
expired. The third allegation is not one with regard to commission of any
corrupt practice. Hence by efflux of time the said issue has become
academic rendering it unnecessary for us to enter into any discussion on
the said question.
17. Consequently and in the light of the above, the appeal is partly
allowed to the extent indicated above. The trial of the election petition
on the issues/allegations that survive in terms of the present order will
have to recommence. We order accordingly.
.......………………………J.
[RANJAN GOGOI]
…………..…………………J.
[ABHAY MANOHAR SAPRE]
NEW DELHI,
OCTOBER 26, 2016.
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[1] 1986 (Supp) SCC 315
[2] (1996) 1 SCC 399
[3] (2007) 3 SCC 617