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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  8254  OF 2016 (Arising out of SLP (C) No. 4512 of 2015)

Ajay Arjun Singh        … Appellant

Versus

Sharadendu Tiwari & Others … Respondents

J U D G M E N T  

Chelameswar, J.

1. Leave granted.

2. Aggrieved by the Order dated 17.11.2014 of the order of

the High Court of Madhya Pradesh in I.A. No. 12911 of 2014

in Election Petition No. 1 of 2014, the unsuccessful applicant

therein preferred the instant appeal.

3. The appellant herein is the returned candidate from 76 -

Churhat  Assembly  constituency  of  the  State  of  Madhya

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Pradesh in the General Elections held in the year 2013.   He

was a candidate sponsored by the Indian National Congress

Party and won by margin of 19,356 votes.   Challenging the

legality of  the election of the appellant,  the first respondent

herein, one of the other candidates at the said election, filed

Election Petition No.1 of 2014.    

4. The appellant herein filed I.A. No.12911 of 2014 invoking

Order VI Rule 16 of the Code of Civil Procedure, 1908 (CPC)

praying various paragraphs of the election petition be struck

off1 on  the  ground  that  the  allegations  contained  in  those

paragraphs are frivolous and vexatious etc.     By the order

impugned in this appeal, the said I.A. was dismissed.  Hence

the instant appeal.

5. Before  we examine the  various questions  that  arise  in

this appeal, we think it profitable to examine the scheme of

Order VI, Rule 16.

“16.  Striking out pleadings – The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading – (a) which  may  be  unnecessary,  scandalous,

frivolous or vexatious, or

1 Para 25.   That, the answering respondent, therefore, respectfully submits that paragraphs 14(A), 14(D) from pages 24 to 29 beginning from “in the Shadow Expense Register . . . Annexure P/19”, 14(E), 14(F), 14(G) (i), 14(H) (i), 14(I), 14(L), 14(M), 14(N), 14(O), paragraphs 15 to 17 and 19 be struck off from the pleadings as the same are irrelevant, unnecessary, frivolous and vexatious.

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(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of  the process of the Court.”

It  authorises  the  court  to  order  that  any  matter  in  any

pleading  before  it  be  struck  out  on  the  grounds  specified

under clauses (a), (b) and (c).   Each one of them is a distinct

ground.   For example, clause (a) authorises the court to strike

out  the  pleadings  which  may  be  (i)  unnecessary,  (ii)

scandalous, (iii) frivolous, (iv) vexatious.   If a pleading or part

of it is to be struck out on the ground that it is unnecessary,

the test to be applied is whether the allegation contained in

that  pleading  is  relevant  and  essential  to  grant  the  relief

sought.    Allegations which are unconnected with the relief

sought in the proceeding fall under this category.    Similarly,

if  a  pleading  is  to  be  struck  out  on  the  ground  that  it  is

scandalous, the court must first record its satisfaction that the

pleading is  scandalous in the  legal  sense  and then enquire

whether such scandalous allegation is called  for or necessary

having  regard  to  the  nature  of  the  relief  sought  in  the

proceeding.   The authority of  the court under clause (c)  is

much wider.   Obviously,   such authority must be exercised

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with  circumspection  and  on  the  basis  of  some  rational

principles.

6. The very purpose of the Rule is to ensure that parties to a

legal proceeding are entitled ex debito justitia to have the case

against them presented in an intelligible form so that they may

not be embarrassed in meeting the case2

7. In the context of the application of Order VI Rule 16, CPC

to the election petition, this Court in  Bhikaji Keshao Joshi

and Another  Vs. Brijlal Nandlal Biyani and Others,  AIR

1965 SC 610 held that a court examining an election petition

may order striking out of charges which are vague3

8. In  Ponnala Lakshmaiah  Vs. Kommuri Pratap Reddy

and  Others (2012)  7  SCC  788,  this  Court  considered  the

scope of an application under Order VII Rule 11 CPC.  Such

an application  was  filed  by  the  returned  candidate  praying

that  the election petition be dismissed for non-disclosure of

any cause of action.   This Court opined that for the purpose

of  determining  such  an  application,  the  averments  in  the

2 Golding Vs. Wharton Salt Works, (1876) 1 Q B D 374 3 it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.

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election  petition  must  be  taken  to  be  factually  correct  and

thereafter examine whether such averments furnish the cause

of  action for  granting  the  relief  to  the  petitioner.    Such a

conclusion was recorded on the basis of the law laid down in

an earlier judgment of this Court4.  We are of the opinion the

same principles of law are applicable even while adjudicating

the application under Order VI Rule 16.

9. In the light of the above principles of law, we proceed to

examine the case on hand.  The election of the appellant is

challenged on the ground of  commission of  various corrupt

practices falling under Section 123(1), 123(3) and 123(6) of the

Representation of the People Act, 1951 (hereinafter referred to

as “the Act”):

“123. Corrupt practices.—The following shall be deemed to be corrupt practices for the purposes of this Act:—

4 Liverpool & London S.P. and I Assn. Ltd. Vs. M.V. Sea Success I, (2004) 9 SCC 512,  Para 8.   To the same effect is the decision of this Court in Liverpool & London S.P. and I Assn.

Ltd. Vs. M.V. Sea Success I where this Court held that the disclosure of a cause of action in the plaint is a question of fact and the answer to that question must be found only from the reading of the plaint itself. The court trying a suit or an election petition, as the position is in the present case, shall while examining whether the plaint or the petition discloses a cause of action, to assume that the averments made in the plaint or the petition are factually correct.    It is only if despite the averments being taken as factually correct, the court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint….

 Para 10.  Applying the above principles to the case at hand, we do not see any error in the order

passed by the High Court refusing to dismiss the petition in limine on the ground that the same discloses no cause of action.   The averments made in the election petition if taken to be factually correct, as they ought to for purposes of determining whether a case for exercise of powers under Order 7 Rule 11 has been made out, do in our opinion, disclose a cause of action.   The High Court did not, therefore, commit any error much less an error resulting in miscarriage of justice, to warrant interference by this Court in exercise of its extraordinary powers under Article 136 of the Constitution.

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 (1) "Bribery", that is to say—  

(A) 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 inducing—  

(a)  a  person  to  stand  or  not  to  stand  as,  or  to withdraw or not to withdraw from being a candidate at an election, or  

(b)  an elector  to  vote  or  refrain  from voting  at  an election, or as a reward to—  

(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or  

(ii) an elector for having voted or refrained from voting;  

(B) the  receipt  of,  or  agreement  to  receive,  any gratification, whether as a motive or a reward—  

(a) by a person for standing or not standing as, or for withdrawing  or  not  withdrawing  from  being,  a candidate; or  

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting,  or any candidate to withdraw or not to withdraw his candidature.  

- - - - -

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

Provided  that  no  symbol  allotted  under  this  Act  to  a candidate  shall  be  deemed  to  be  a  religious  symbol  or  a national symbol for the purposes of this clause.

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- - - - -

(6) The  incurring  or  authorizing  of  expenditure  in contravention of section 77.”

i.e.  bribery,  soliciting  votes  on  the  ground  of  religion  and

incurring of expenditure in contravention of Section 77 of the

Act.

10. The  allegations  regarding  the  commission  of  corrupt

practices falling under Section 123(1) are to be found in para

19  of  the  election  petition.  The  allegations  regarding

commission of corrupt practices falling under Section 123(3)

are contained in paragraph 18 of the election petition, which is

not one of the paragraphs which was prayed to be struck off5.

 11. All  the remaining paragraphs which were prayed to be

struck off, pertain to the allegation of corrupt practice falling

under Section 123(6).  The allegations contained in each one of

these paragraphs pertain to the expenditure incurred under

different  heads  by  the  appellant  in  connection  with  the

election  campaign6.  According  to  the  Respondent  the  total

5  See Footnote 1. 6 That is the admitted case (rightly) even of the appellant at para 3 of the I.A. 12911 of 2014, it is stated,

“The entire election petition is based on :- (a) Under valuation of the items used in the election campaign (b) Non disclosure of expenses in respect of certain items alleged to have been used in     such election”

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amount  of  expenditure  so  incurred  by  the  appellant  is  in

excess of the limit prescribed under Section 77 of the Act.

12. The  allegations  contained  in  para  197 of  the  election

petition  are  not  disputed  by  the  appellant.    On the  other

hand, he chose to explain his conduct in para 24 of the I.A.

“24. The  answering  respondent  hereby  respectfully submits that an amount of Rs. 20 lacs is earmarked for  expenditure  by  every  member  of  the  M.P. Legislative Assembly every year in his constituency.  A Minister and Leader of Opposition are provided Rs. 20 lacs per year for voluntary grant. The manner in which this grant is to be distributed is the sole discretion of such  Minister/Leader  of  Opposition.  The Minister/Leader  of  Opposition  gives  a  list  to  the Secretary of the Vidhan Sabha containing the names of the persons and the amount to whom the grant is to be made.   Accordingly, the drafts are issued to the persons concerned as per procedure.”

13. Whether the explanation is factually correct and, if  so,

what  are  the  legal  implications  of  the  said  explanation  are

matters to be decided in trial  of  the election petition.  If  the

explanation  is  either  found  to  be  untrue  or  legally

7  19.  That during model code of conduct, to bribe voters, INC Candidate/respondent no.1 through his representative  Shri  Bharat  Singh,  (Vidhayak  Pratinidhi)  has  distributed  large  quantity  of  demand drafts/cheques issued by different account maintained at T.T. Nagar Bhopal.  The petitioner came across with one of the said cheques/demand draft issued in favour of one Charka Kol who is voter from polling station Dhanaha.  Even during election the drafts were distributed by Bharat Singh as Vidhayak pratinidhi, since INC Candidate Respondent No.1 is Member of Legislative Assembly continuously and known as Vidhayak.  The Election agent of petitioner has made a complaint to observer in this regard.  The copy of complaint made to observer by election Agent is being filed herewith as  Annexure P-53.  However even then  the  same  corrupt  practice  continued  by  representative  of  INC  Candidate/Respondent  no.1 representative Shri Bharat Singh and anti dated cheques/Demand Drafts were given to voters to influence their votes.  Another such draft drawn in favour of Rajkumari Saket has been brought to the notice of petitioner who was not able to encash it as she don’t have any account.  When the petitioner enquired from her she disclosed that the same has been given to her by Shri Bharat Singh on 12/11/2013 with a request that “Rahul Bhaiya” has arranged the fund for her employment and have requested for vote of her and her family member.   The copy of demand draft is being filed herewith as Annexure P-54.

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unacceptable, the allegation made in para 19 of the election

petition is sufficient to hold that the Appellant is guilty of the

corrupt practice under S. 123(1). Therefore, we do not find any

error in the order of the High Court in refusing to strike off the

pleadings in para 19 of the election petition.  

14. We  now  examine  the  validity  of  the  impugned  order

insofar as it pertains to the incurring of expenditure (by the

appellant herein) beyond the permissible limits prescribed by

law.   An  analysis  of  the  allegations  contained  in  various

sub-paragraphs  of  paragraph 14  and in  paragraphs 15,  16

and  17  of  the  election  petition  indicates  that  the  excess

expenditure said to have been incurred by the appellant falls

under three heads.  

Furnishing of inaccurate information8 to the District Election

Officer:  

(i)  regarding the quantity and quality of the material used in

the campaign by the appellant herein,  

8 An obligation flowing from Section 78 of the RP Act, 1951 “Section  78.  Lodging  of  account  with  the  district  election  officer.—Every  contesting

candidate at an election shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the district election officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.”

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(ii) regarding  the  cost  of  the  various  items so  used by  the

returned  candidate  by  giving  false  information  based  on

deliberate under-valuation of the material actually used by the

appellant,  

(iii)  Total  non disclosure of  certain expenditure incurred by

the appellant  for  (a)  organizing a meeting of  one of  the top

functionaries of the political party (Shri Rahul Gandhi) which

sponsored the appellant at the election, and  (b)  the use of a

helicopter by the appellant during the relevant period.  

15. The  allegations  and  counter  allegations  regarding  the

quantity  and  quality  of  the  material  used  by  the  appellant

during the course of his election campaign and value of such

material are pure questions of fact which are required to be

established on evidence.    The law in this regard as already

noticed is  that  until  proved otherwise the allegations in the

election petition must be presumed to be true.   The burden of

establishing the truth of all those allegations is essentially on

the  respondent/election  petitioner.    We  have  meticulously

gone through the various allegations in this regard contained

in various sub-paragraphs of paragraph 14 and we are of the

opinion that there is nothing which warrants striking out of all

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those pleadings invoking Order VI Rule 16 CPC.   Each of the

paragraphs  contains  allegations  that  the  appellant  incurred

some expenditure (specified)  under some head or the other.

The sum total of such amount would exceed the permissible

limits of expenditure under Section 77 of the Act.

16. The only question which deserves our attention in this

regard is that it is the case of the appellant that under the

procedure that is being followed by the Election Commission a

rate  list  has been finalized with respect  to  each one of  the

items  to  be  utilized  in  the  campaign  by  any  one  of  the

candidates at an election.  The appellant’s declaration of his

expenditure with regard to the various items used during the

process  of  campaign  is  consistent  with  such  determination

made by the Election Commission. Therefore there cannot be

any  further  enquiry  regarding  the  correctness  of  the

declaration made by him about the expenditure incurred in

connection with those materials. The appellant’s pleading in

this regard in I.A. is as follows:-

“5. That,  under  Rule  90  of  Conduct  of  Elections Rules,  1961  the  maximum  election  expenses  to  be incurred  by  a  candidate  in  respect  of  M.P.  State Legislative Assembly election has been fixed at Rs. 16 lacs.    In  order  to  have  a  check  over  the  limit  of election  expenses  the  Collector/District  Election

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Officer prepared a rate list of various items which were sought  to  be  used  in  the  election  campaign  by appointing  a  Sub  Committee  of  three  responsible officers. The Committee pursuant thereto ascertained the  rates  of  such  material  from  open  market  in consultation with the representatives of major political parties  and  thereafter  prepared  a  final  rate  list  of various items used in the election.    The answering respondent  is  filing  copy  of  proceedings  of  the Collector/District  Election  Officer  fixing  the  rates  of different items used in the election as Document No. 1.   The  petitioner  has  filed  a  copy  of  rate  list  as Annexure-P-3. The publication of rate list preceded the proceedings held in that behalf by the District Election Officer, which the answering respondent has now filed as Document No. 1.  The rate list so prepared by the Election Officer has not been disputed by any of the political party or their representatives.

6. That, certain items which could not find place in the rate list so prepared by the Collector have since been  included  in  the  ‘shadow  register’  of  each candidate  prepared  by  the  Election  Expense Observers.   Such rate list and the shadow register are final  and conclusive.   The rate  list  and the ‘shadow register’ are not open to challenge and the valuation in respect  of  such  items  cannot  be  reassessed  and revalued by this Court in an election process.”  

******** ********     *******

9. That, the present election petition will not be maintainable in respect of expenses incurred by the answering respondent which have been accepted by the  District  Election  Officer  (for  short,  ‘DEO’) inasmuch as this Court will not sit over rate list or shadow  register  to  give  its  own  valuation  of  the election material, as the same would be beyond the scope  of  trial  of  election  petition  under  the Representation  of  People  Act  of  1951 (hereinafter referred to as the “1951 Act”).

17. On the other hand, it is the case of the respondent that

the  determination  made by  the  Election Commission is  not

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conclusive of the prices of the material used by any candidate

at the election.  Apart from that,  the actual quantity of  the

campaign material used by any candidate at an election and

its  cost  is  always  a  question  of  fact.   After  an  election  is

concluded,  it  is  always  open  to  any  election  petitioner  to

demonstrate in an election petition that the campaign material

used by the returned candidate is more expensive than what

was  determined  by  the  Election  Commission,  after  all  the

value  of  the  material  depends  both  upon  the  quality  and

quantity of the material used.   All these are questions of fact

which  are  required  to  be  examined  and  determined  by  the

court in an election petition.     

18. We accept the submission of the election petitioner.  The

values fixed by the Election Commission or its functionaries

are not conclusive.  There is no statutory basis for such an

exercise.   The  valuation  made  by  the  Election  Commission

obviously  would  be  based  on  the  samples  supplied  by  the

candidates.   There  can  never  be  any  presumption  that  the

candidates  used  the  same quality  of  material  in  the  actual

process of campaigning.  Apart from that the quantity and the

quality of the material used in the election campaign and the

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real cost of the material actually used by any candidate are

always questions of fact, which are required to be established

in evidence. We are of the opinion that the High Court rightly

rejected the application of the appellant on this count.

19. The only major issue which requires an examination is

regarding the third head mentioned (Para 14) above.  It is once

again required to be divided into two sub-headings,  

(a) The expenditure allegedly incurred in connection with the

public  meeting  of  Shri  Rahul  Gandhi  at  the  District

Headquarters,  Sidhi  on  20th November,  2013.   The

allegations in the regard are to be found in para 14(L) of

the election petition.    

The substance of the allegation is that though the

meeting was held at Sidhi which is beyond the territorial

limits of Churhat Constituency (from which the parties

herein contested), the appellant was not only present at

such meeting but also shared the dais with Shri Rahul

Gandhi (Vice-Chairman of the Indian National Congress).

The  appellant  mobilized  lot  of  voters  from  his

constituency  and  hired  vehicles  for  that  purpose

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incurring  expenditure.   The  appellant  also  incurred

expenditure  in  connection  with  the  erection  of  the

pandals,  security  arrangement  etc.  According  to  the

respondent,  such expenditure would be Rs.13,88,073/-

and  the  same  is  required  to  be  added  to  the  election

expenditure of the appellant.

(b)   That  the  appellant  between  4.11.2013  to  19.11.20139

traveled  on  8  occasions  by  chartered  flights  between

Bhopal to Sidhi.   According to the respondent, on this

count  alone  the  appellant  incurred  an  expenditure  of

Rs.40  lakhs.  The  details  of  such  flights  and  the

allegations are to be found at para 14(M) of the election

petition.

20. The  response  of  the  appellant  as  disclosed  by  IA

No.12911  of  2014  with  regard  to  the  abovementioned  two

allegations is  found at  paragraph nos.19 and 20.  It  can be

seen therefrom that the appellant does not dispute that there

was a public meeting in the grounds of Sanjay Gandhi College

at  Sidhi  on  20.11.2013  attended  by  Shri  Rahul  Gandhi.

According to the appellant, the venue of the meeting is within 9 Periods relevant for the purpose of deciding the expenditure incurred under Section 77.

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the territorial  limits  of  77 Sidhi  Assembly Constituency but

not  within  the  territory  of  76  –  Churhat  Assembly

Constituency.  The  meeting  was  organized  by  one  Shri

Kamleshwar  Dwivedi  who  was  the  candidate  of  the  Indian

National Congress Party contesting from the said constituency.

The  said  Kamleshwar  Dwivedi  lodged  the  account  under

Section 78 of the Act disclosing the details of the expenditure

incurred by him for conducting the aforesaid meeting which

was  duly  accepted  by  the  Returning  Officer  of  77  -  Sidhi

Assembly Constituency.  It is the specific plea of the appellant

that he was present in the said meeting because he was also

one of the “star campaigners” for the Indian National Congress

Party  in  the  said  election.   According  to  the  appellant,  the

appellant  is  under  no  legal  obligation  to  account  for  the

expenditure incurred for organizing the said meeting10.   

21. It is significant to notice that there is no specific denial

by the appellant of the allegation in the election petition that

the appellant herein had hired a large number of vehicles11 to 10 If  expenses  of  such  meeting  have  already  been  shown by the  candidate  in  whose  constituency  the meeting was held, it was not necessary or obligatory upon the answering respondent to account for the expenses of such meeting which had not taken place in his Constituency.  [See: IA No.12911 of 2014 , para 19 ] 11  The perusal of permission application which was obtained by INC for the said meeting, would make it clear that presence of first respondent was the individual act of the first respondent, his presence was as a candidate  of  76  Churhat  of  INC,  a  large  numbers  of  vehicle  were  illegally  hired  by  INC Candidate/respondent no.1 in order to facilitate voters from his constituency 76-Churahat to attend the said

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facilitate voters from his constituency to attend the said public

meeting.  IA No.12911 of 2014 is absolutely silent regarding

that  allegation.   The  appellant  does  not  even  deny  the

allegation. We must not be understood to be holding that if the

appellant had denied the allegation, such denial would suffice

to strike out of the pleadings.  

22. Coming to the second limb of  that  head regarding the

cost incurred for the construction of pandals or barricades in

connection  with  the  abovementioned  meeting  of  Shri  Rahul

Gandhi,  the  stand  taken  by  the  appellant  in  the

abovementioned IA is that the said meeting was held beyond

the territorial limit of the assembly constituency from which

the appellant contested.  The Indian National Congress Party’s

candidate contesting from Sidhi constituency had declared the

expenditure  incurred  in  connection  with  the  said  meeting.

The  appellant  is  under  no  legal  obligation  to  make  any

declaration of the expenditure incurred by him in connection

with the said meeting.  

public meeting.  There are around 44 buses and number of taxi permit vehicle along with private vehicle were  used  for  transportation  of  voters  to  attend  said  public  meeting.   The  posters  used  there  have photo/picture of respondent no.1, therefore, the entire expenditure of the said meeting would be included in the expenditure of first respondent, as no other candidate of any other adjoining constituencies shared the dais with Mr. Rahul Gandhi.  (See: Para 14-L of the Election Petition)  

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23. It may be noted that the appellant does not make any

categoric assertion that he did not incur any expenditure in

connection with the said meeting.

 24. Coming to the use of the Helicopter, once again it is not a

case of  the appellant  that  he did not  use the helicopter  as

alleged by the respondent – election petitioner.  His defence is

that he is one of the ‘star campaigners’ contemplated under

Section 77 of the Act.  The expenditure was incurred by him

for the use of the Helicopter as a ‘star campaigner’.  In that

capacity he had to travel throughout the State holding public

meetings  propagating  programme  of  the  Indian  National

Congress Party.  The expenditure for the use of the helicopter

was “borne by the Indian National Congress” and, therefore,

outside  the  purview  of  the  election  expenditure  of  the

appellant.  The relevant portion of the pleading at para 20 of

the IA No.12911 of 2014 reads as follows:

“In this view of the mater,  the expenses so incurred in the use of helicopter has since been borne by the  Indian  National  Congress,  New  Delhi  and  the same is outside the purview of election expense so far as the answering respondent is concerned by virtue of Explanation 1(a) to Section 77 referred to above.  It is, however further added that the answering respondent besides being a star campaigner was also a leader of opposition in the last M.P. State Legislative Assembly. The  answering  respondent  is  otherwise  a  veteran

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leader of the Indian National Congress Party and on account of his capacity as such, he was appointed as Star  Campaigner  and  has  traveled  throughout  the State,  holding  public  meetings,  propagating programme  of  the  Indian  National  Congress  Party. The  expenditure  so  incurred  in  use  of  helicopter  in propagating the programme of  the  party  throughout the State cannot be included in the election expense of the  answering  respondent  in  respect  of  his  election from 76, Churhut Vidhan Sabha Constituency.  It is further made clear that he never used helicopter for his election campaign in 76, Churhut Vidhan Sabha Constituency.  Thus,  in  view  of  Explanation  1(a)  to Section  77  of  the  1951  Act,  the  entire  pleadings contained in paragraph 14(M) are liable to be struck off being absolutely vexatious and frivolous providing no cause of action for trial of election petition.”

(emphasis supplied)

25. Section 7712 of  the Act obligates every candidate in an

election to keep a separate current account of all expenditures

in connection with the election between the dates on which

such a  candidate  has  been nominated  and the  date  of  the

declaration of result of that election.  However, clause (a) of

explanation (1) to Section 77 of the Act declares “the expenditure

incurred by leaders of a political party on account of travel by air or by

any other means of transport for propagating programme of the political

party” shall not form part of the expenditure of the candidate.

12 Section 77. Account of election expenses and maximum thereof.—(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.

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26. The expression “leaders  of  political  party”  occurring  in

explanation 1 is itself explained in explanation 2 to the said

Section.     

“Explanation  2.—For  the  purpose  of  clause  (a)  of Explanation  1,  the  expression  “leaders  of  a  political party”, in respect of any election, means,—

(i) where  such  political  party  is  a  recognised political party, such persons not exceeding forty in number, and

(ii) where  such  political  party  is  other  than  a recognised  political  party,  such  persons  not exceeding twenty in number,

whose names have been communicated to the Election Commission  and  the  Chief  Electoral  Officers  of  the States  by  the  political  party  to  be  leaders  for  the purposes  of  such  election,  within  a  period  of  seven days from the date of the notification for such election published in the Gazette of India or Official Gazette of the State, as the case may be, under this Act.”

27. It can be seen from explanation 2, to qualify to be called

‘a  leader  of  the  political  party’  for  the  purpose  of  such  an

election  under  Section  77,  the  name  of  such  a  person  is

communicated  to  the  Election  Commission  and  the  Chief

Electoral Officer of the State by the concerned political party.

Such a communication is required to be made within a period

of 7 days from the notification of such election published in

the gazette of India etc.  

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28. Persons whose names have been so communicated to the

Election  Commission  popularly  came  to  be  called  ‘star

campaigners’ in connection with an election.  It is the admitted

case of the parties before us that both Shri Rahul Gandhi and

the  appellant  are  star  campaigners/leaders  of  the  Indian

National Congress Party for the election in question.   

29. However, the entire expenditure incurred (on whatsoever

count)  by such star  campaigners or  on behalf  of  such star

campaigners is not exempted under Section 77 for the purpose

of determining the total expenditure incurred by any candidate

in an election.  The language of explanation 1 to Section 77

makes it clear that only the expenditure incurred by the star

campaigner that too on account of travel for propagating the

programme of the political party is excluded for the purpose of

computing  the  expenditure  incurred  by  the  candidate.    In

other  words,  the  expenditure  incurred  in  connection  with

arrangements like erection of pandals etc. for a meeting of a

star  campaigner  does  not  form  part  of  the  exempted

expenditure under explanation 1. Secondly, under explanation

II,  the star campaigners’  travel expenditure must have been

incurred by the star campaigner himself.  It is obvious from

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the opening clause of explanation 1 “the expenditure incurred by

leaders of a political party”.   If such expenditure is incurred by

any  person  other  than  the  star  campaigner,  different

considerations would arise.

30. The  application  i.e.  IA  No.  12911  of  2014  does  not

disclose  on  which  one  of  the  grounds  contemplated  under

Order  VI  Rule  16,  the  various  paragraphs  of  the  election

petition are required to be struck out.   On the other hand, the

appellant gave an elaborate explanation with respect to each of

the  allegations  contained  in  the  various  paragraphs  of  the

election  petition  which  are  prayed  to  be  struck  out.    The

moment court is asked to examine the defence of the returned

candidate  in  an  election  petition,  the  election  petition  can

neither be dismissed for want of cause of action nor any part

of the pleading can be struck out under Order VI Rule 16.  In

the  absence  of  the  availability  of  any  one  of  the  grounds

mentioned  in  Order  VI  Rule  16,  CPC  striking  out  is

impermissible.   As observed by this Court in the context of

the  application  under  Order  VII  Rule  11,  the  averments

contained  in  the  election  petition  at  this  stage  must  be

presumed to be factually correct.   The only possible scrutiny

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of such statement is whether those allegations are relevant in

the context of the relief sought in the election petition.  None of

the  allegations  contained  in  the  various  sub  paragraphs  of

paragraph  14,  except  paragraph  14M,  can  be  said  to  be

irrelevant in the context of the prayer in the election petition.   

31. The specific pleading in the election petition at paragraph

14M is that the appellant herein used the helicopter on many

occasions during the relevant period only between Bhopal and

Sidhi,  both  of  which  are  outside  the  constituency  of  the

appellant13.  The admitted fact is that the appellant was one of

the  star  campaigners  for  the  said  election  for  the  State  of

Madhya Pradesh.  Therefore, he was required to campaign for

his  political  party,  not  only  in  his  constituency but  also  in

other  constituencies  of  the  State.   In  the  absence  of  any

allegation that the appellant used the helicopter for traveling

13  “M. ……… During election between 4/11/2013 to 19/11/2013 there were eight charter flights between Bhopal to Sidhi/Churhat  which respondent  no.1 has used these flights to come from his Kerwa Kothi Bhopal to assembly constituency 76-Churahat for his election campaign.  In fact the first respondent on the date of filing of nomination has used charter flight to arrive at District Head Quarter at Sidhi and thereafter proceeded to Churahat.  The details are as under:

i) 4/11/2013 (Panwar) Sidhi to Bhopal ii) 05/11/2013 Bhopal to Sidhi (Panwar) iii) 08/11/2013 Bhopal to Sidhi (Panwar) iv) 11/11/2013 Bhopal to Sidhi (Panwar) v) 12/11/2013 Sidhi (Panwar) to Bhopal vi) 16/11/2013 Bhopal to Sidhi (Panwar) vii) 18/11/2013 Bhopal to Sidhi (Panwar) viii) 19/11/2013 Sidhi (Panwar) to Bhopal The estimated cost of these charter flight would be Rs.40,00,000/- (Forty Lac) (@ Rs.Five Lakh

per flight). True copy of permission of these flights are cumulatively filed as Annexure P-42.

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within  76-Churahat  constituency  for  the  purpose  of

campaigning, the expenditure incurred on that account, in our

opinion, cannot be included in the election expenditure of the

appellant.  Therefore, paragraph 14M of the election petition is

liable to be struck off and is, accordingly, struck off.

32. Before parting with this case, we would like to place on

record that the procedure adopted by the appellant in initially

filing a  petition  under  Order  VII  Rule  11 petition14,  praying

that the election petition be dismissed and filing the instant

application after a long gap15 is to be deprecated.   Preliminary

objections, if any, (in cases where there is more than one) in

an election petition are to be taken at the earliest point of time

and in one go.   The practice such as the one adopted by the

appellant only tends to delay the adjudication of the election

petition which are mandated16 by the Parliament to be decided

within a period of six months.   We declare that the later of

such successive petitions must be dismissed by High Courts

in limine on that count alone.

14 Filed on 1.7.2014 15 I.A. No. 12911/2014 in Election Petition No.1/2014 was filed on 11.9.2014 16 S. 86(7), The Representation of the People Act, 1951

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33. The appeal is, therefore, partly allowed striking out

only paragraph 14M of the election petition.   

….………………………….J.                                                (J. Chelameswar)

…….……………………….J.   (Abhay Manohar Sapre)

New Delhi; August 23, 2016

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