Navjot Singh Sidhu Vs Om Prakash Soni .

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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

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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

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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

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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. No.

Date of Publica-ti on

Name of the Newspapers

Page No.

Size of Advertise-m ent

Rate Amount (In Rupees)

1. 22.04.2009 Ajit 7 22 x 12 = 204

180 47,520

2. 22.04.2009 Dainik Bhaskar

2 16.5 x 18.5 = 305.25

664 2,02,686

3. 22.04.2009 Dainik Jagran

1 24 x 12 = 288

166 47,808

4. 22.04.2009 Tribune 3 10 x 12 = 120

852 1,02,240 5. 23.04.2009 Ajit 7 a) 33 x 10

= 330 (B/w) b) 20 x 14 = 280

90

180

29,700

50,400

6. 23.04.2009 Dainik Bhaskar

3 25 x 32 = 800

747 5,97,600

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7. 23.04.2009 Punjab Kesari – Amr.

1 16 x 24.5 = 302

225 88,200

8. 24.04.2009 Jag Bani 2 10 X 16 (B/w) = 160

87.5 14,000

9. 25.04.2009 Ajit 7 12 x 9 = 108

180 19,440 10. 25.04.2009 Punjab

Kesari 2 12 x 5

(B/w) = 60 125 7,500 11. 26.04.2009 Ajit 7 16.5 x 20 =

330 180 59,400

12. 26.04.2009 Jag Bani 1 17 x 16 = 272

150 40,800

13. 27.04.2009 Jag Bani 2 8 x 3 (B) = 24

87.5 2,100

14. 28.04.2009 Ajit 7 29 x 10 = 290

180 52,200

15. 28.04.2009 Dainik Bhaskar

2 20 x 10 = 200

664 1,32,800

16. 30.04.2009 Ajit 7 15 x 8 (B) = 120

180 21,600 17. 30.04.2009 Jag Bani

(Local) 1

2

10 x 12 = 120 a) 8 x 5 = 40 b) 16 x 6 = 96 c) 16 x 6 = 96

150

125 125 125

18,000

5,000 12,000 12,000

18. 01.05.2009 Jag Bani 1

2

20.5 x 9 = 184.5 a) 8 x 5 (B) = 40 b) 16 x 6.5 (B) = 104

150

87.5

27,675

3,500

9,100 19. 01.05.2009 Punjab

Kesari 1 20 x 9 =

180 225 40,500

20. 02.05.2009 Ajit 7

8

4 x 4 (B/w) = 16 16.5. x 12 = 198

90

1,440

17,820 21. 02.05.2009 Jag Bani 2 a) 8 x 5

(B) = 40 b) 8 x 5 (B) = 40

87.5 . 87.5

3,500

22. 03.05.2009 Jag Bani 2 8 x 5 (B) = 40

87.5 3,500

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23. 04.05.2009 Ajit 11 a) 8 x 6 (B) = 48 b) 8 x 6.5 (B) = 52 c) 8 x 6.5 (B) = 52 d) 8 x 7 (B) = 56 e) 8 x 9 (B) = 72 f) 8 x 6 (B) = 48 g) 8 x 7 (B) = 56

90

4,320

4,680

5,040

6,480

4,320

5,040 24. 04.05.2009 Jag Bani 1

2

33 x 5 = 165 12 x 8.5 (B) = 102

150

87.5

24,750

8,925 25. 04.05.2009 Amr. Kesari 1

2

33 x 5 = 165 Party 8 x 5 = 40

225

162. 5

37,125

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 b) 12 x 6.5 (B) = 78

87.5

3,500

6,825 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 b) 8 x 6 (B) = 48

87.5

3,500

4,200 30. 07.05.2009 Ajit 7 a) 12 x 7

(B) = 84 b) 12 x 9 (B) = 108

90

7,560

9,720

31. 08.05.2009 Ajit 7

8

33 x 13 (B) = 429 8 x 10 (B) = 80

90

38,610 7,200

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32. 08.05.2009 Jag Bani 1

2

33 x 9 (P) = 297 a) 8 x 7 (B) = 56 b) 8 x 10 (B) = 80 c) 8 x 5 (B) = 40 d) 8 x 5.5 (B) = 44

150

125

87.5

44,550

7,000

3,500

3,850

33. 09.05.2009 Ajit 7 a) 8 x 9 (B) = 72 b) 8 x 5 (B) = 40 c) 8 x 10 (B) = 80 d) 33 x 8 (P) = 264

90

6,480

3,600

7,200

23,760 34. 09.05.2009 Jag Bani 3 12 x 10(B)

= 120 100 12,000

35. 10.05.2009 Ajit 1

7

a) 12 x 9 (B) = 108 b) 8 x 10 (B) = 80 c) 16 x 12 (B) = 192

90

9,720

7,200

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 b) 20 x 10 = 200

180

17,280

36,000

38. 11.05.2009 Jag Bani 2 a) 16 x 6 (B) = 96 b) 24.5 x 8(B) = 196

87.5

8,400

17,150

39. 12.05.2009 Ajit 7 a) 16 x 19 = 304 180 54,720

40. 12.05.2009 Jag Bani 1

2

33 x 9 = 297 a) 8 x 4 (B) = 32 b) 8 x 4.5

150

125

44,550

4,000

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(B) = 36 c) 12 x 9 (B) = 108

87.5

3,150

9,450 41. 13.05.2009 Ajit 7 a) 8 x 5

(B) = 40 b) 20.5 x 16 (B) = 328

90

3,600

29,520 42. 13.05.2009 Jag Bani –

Local 1

2

a) 16 x 25 = 400 b) 12 x 12 = 144 (Hang) c) 4 x 5 = 20 d) 16 x 13 = 208 8 x 6 (B) = 48

150

300 (H)

150

87.5

60,000

43,200

3,000

31,200

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. No.

Name of Channel

Duration of clip (Sec.)

Rate/ sec. of Broad cast (Rs.)

Total No. of days

No. of times of broadcast per day

Amount

1. Metro/Film y

70 27.5 22 18 762300 2. Movie 70 30 22 18 831600

TOTAL 15,93900”

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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

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decisions of this Court i.e. Azhar Hussain vs. Rajiv Gandhi1 and Ramakant Mayekar vs. Celine D’Silva2 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 1 1986 (Supp) SCC 315 2 (1996) 1 SCC 399

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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

3 (2007) 3 SCC 617

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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.

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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

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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

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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

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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

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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

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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

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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.

NAVJOT SINGH SIDHU Vs OM PRAKASH SONI .

NAVJOT SINGH SIDHU Vs OM PRAKASH SONI .