Sanjay Gurjar vs Shri Dushyant Singh And Ors.

Case

Sanjay Gurjar vs Shri Dushyant Singh And Ors.

Date - 10 March, 2008

Bench - K Rathore


Facts -

Brief facts of the case are that the petitioner filed his nomination papers as a candidate of Indian National Congress Party, respondent No. 1 Shri Dushyant Singh filed his nomination papers as a candidate of Bhartiya Janta Party, respondent No. 2 Shri Ratan Lal filed his nomination papers as a candidate of Bahujan Samaj Party and the respondent No. 3 Shri Jakir Hussain filed his nomination papers as an independent candidate to contest the elections of Parliament from Jhalawar Parliamentary Constituency . As per the election calender notified by the Election Commission, the date of polling was fixed as 05.05.2004 and the date of counting of the votes and declaration of the election result was fixed as 13.05.2004. After scrutinising the nomination papers, all the above four candidates i.e. the petitioner and respondent Nos. 1, 2 and 3 were declared eligible to contest the election from the Parliamentary Constituency of Jhalawar .

The result of the election of Jhalawar Parliamentary Constituency was declared on 13.05.2004 and as per the result, the returned candidate respondent No. 1 Shri Dushyant Singh was declared elected. The final result sheet was published under Rule 56(ga) 2 (ga) and the result was in the prescribed form (under Section 66 of the Representation of People Act, 1951) and as per the final result sheet, respondent No. 1 Shri Dushyant Singh secured 3,03,845 votes, respondent No. 2 Shri Ratan Lal secured 16,336 votes and respondent No. 3 Jakir Hussain secured 25,164 votes in their favour whereas the petitioner secured 2,22,266 votes.

4. The present election petition has been preferred by the petitioner on the ground that since beginning that is just after publication of the programme of election by way of notification by the Chief Election Commissioner of India, during the course of canvassing and thereafter during the course of polling on 05.05.2004 and on the date of re-polling i.e. 07.05.2004, the returned candidate respondent No. 1 Shri Dushyant Singh, his election agents, his mother Smt. Vasundhara Raje Scindia, the Hon"ble Chief Minister of State of Rajasthan have adopted corrupt practices in the interest of returned candidate respondent No. 1 Shri Dushyant Singh and in spite of various complaints by the petitioner, his agents, his party leaders as well as the polling agents though re-polling was ordered by the Election Commission but only for thirteen polling booths, whereas such corrupt practice was adopted by the returned candidate, his mother and his election agents at all the polling booths.

It is alleged that there was continuous misuse of the government machinery by the ruling Bhartiya Janta Party for canvassing of the returned candidate, who is son of the Hon"ble Chief Minister of the State of Rajsthan. It is also alleged that there were incidents of booth capturing by the Bhartiya Janta Party workers and also supplied liquor to the voters just before a day of polling and about 900 bottles of liquor were recovered by the police from the factory premises belonging to Bhartiya Janta Party"s leader Shri Satish Gupta. To this effect, the petitioner also made several complaints to the Chief Election Commissioner.

After alleging allegations of corrupt practice, the petitioner by way of the instant election petition has prayed that election of respondent No. 1 Shri Dushyant Singh as Member of Parliament from the Parliamentary Constituency of Jhalawar be declared illegal and void on account of corrupt and mal practices adopted in the interest of the returned candidate by returned candidate himself, his election agents, workers of Bhartiya Janta Party as they were under the influence of the mother of the returned candidate, the Hon"ble Chief Minister of the State of Rajasthan Smt. Vasundhara Raje Scindia.

On behalf of returned candidate (respondent No. 1) Shri Dushyant Singh two applications have been filed; one under Order 6 Rule 16 and another under Order 7 Rule 11 of the Code of Civil Procedure. By way of application under Order 6 Rule 16 CPC moved on behalf of the returned candidate respondent No. 1 Shri Dushyant Singh, the relief has been claimed that the offending portion in paragraphs 2, 3, 3(1), 3(2), 3(3), 3(4), 3(5), 4, 6, 7 and 8 of the election petition may kindly be struck out or in the alternative this Court may kindly direct the petitioner to suitably amend the election petition before commencement of further proceedings in the election petition filed by the petitioner.

In response to the application under Order 6 Rule 16 CPC, the petitioner has not filed any reply and without filing any reply the petitioner only wants to submit the legal submissions to the application under Order 6 Rule 16 CPC.

Another application has been moved on behalf of the returned candidate respondent No. 1 under Order 7 Rule 11 CPC claiming relief to reject the election petition under Order 7 Rule 11 CPC mainly on the ground that no cause of action is made out and no triable issue arises from the pleading and as such the trial of the election petition would be only a vexatious and futile exercise.

In response to the aforesaid application filed on behalf of the returned candidate (respondent No. 1) Shri Dushyant Singh under Order 7 Rule 11 CPC, the petitioner has filed reply and the same is on record.

In application under Order 6 Rule 16 CPC filed by the returned candidate, it is contended that the averments made in the election petition are vague, unnecessary, frivolous and vexatious in the context of the purported cause of action on which the present election petition has been filed.

Learned Counsel appearing for the respondent No. 1 referred para 2 of the election petition wherein vague averment has been made that since so many complaints were made regarding corrupt practices adopted in the interest of respondent No. 1 as well as regarding booth capturing at various places

After referring the averments made in para 2 of the election petition, learned Counsel for the respondent No. 1 submits that the aforesaid averments are vague and bald, simply a mere mechanical repetition of the language without giving details of the allegations and are frivolous, vexatious and deserve to be struck out.

Similarly in para 3 of the election petition, the averments are made that during the course of canvassing and thereafter during the course of polling on 5th May, 2004 and on the date of re-polling on 7th May, 2004, the returned candidate Shri Dushyant Singh, his election agent and his mother Smt. Vasundhara Raje Scindia, Hon"ble Chief Minister of Rajasthan, adopted corrupt practices in the interest of the returned candidate.

After quoting the allegations alleged in para 3 of the election petition, the learned Counsel for the applicant/respondent submits that the aforesaid averments at the instance of the petitioner is again very generalised in character and vague made with the sole purpose of embarrassingtheapplicant/respondent.The reference of Smt. Vasundhara Rajeh Scindia, the Hon"ble Chief Minister of the State of Rajasthan is deliberately made without being necessary to the laying of a challenge to the election of the returned candidate under Section 100(b) and (d)(ii) of the Act of 1951, which pertain to the corrupt practice alleged and attributed to the returned candidate, the election agent and the acts of other agents with the consent of the returned candidate and not to mother of the returned candidate even if a Chief Minister and, therefore, being vague and frivolous allegations alleged in para 3 of the election petition deserve to be struck out.

Further allegations made in para 3 of the election petition are that corrupt practice was adopted by them i.e. by the returned candidate, his election agent and his mother at all election booths, similar to the averments made earlier and the said averment is vague and vexatious and wholly frivolous made not so much to support the charge of corrupt practice or provide the basis/foundation of such a charge but with the sole purpose of creating sensationalism and scandalizing this Court. The allegations aforesaid do not supply a ground or the foundation of the election petition in accordance with law and, therefore, the same deserves to be struck out.

Further in para 3(1) of the election petition, it has been averred that continuous use of government machinery by the ruling B.J.P. party for canvassing of the returned candidate who is the son of the Chief Minister of Rajasthan. This averment is also without material particulars, again wholly scandalous in nature and liable to be struck out. Similar averments are also made in para 3(2) and 3(3) of the election petition.

Learned Counsel for the applicant/ respondent also referred the averments made in para 3(4) of the election petition, wherein it has been alleged that the returned candidate, his elected agent and Smt. Vasundhara Raje Scindia, Chief Minister, threatened and beaten the Presiding Officer and Administrative Officers trying to conduct free and fare election of Jhalawar Parliamentary Constituency, are wholly false, for neither the polling booth nor the Presiding Officer nor the Administrative Officers allegedly threatened or be laboured at the instance of the returned candidate.

Learned Counsel Mr. Alok Sharma also referred para 3(5) of the election petition, wherein the petitioner levelled allegation regarding recovery of 900 bottles of liquor from the factory premises of an alleged B.J.P. leader Shri Satish Gupta, which do not constitute a cause of action for laying a challenge to an election petition under Section 100(b) and 100(d)(ii) of the Act of 1951.
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