Singh Vs. Amrinder Singh  INSC 697 (16 December 2005)
Sabharwal, C.K. Thakker & P.K. Balasubramanyan
present appeal is directed against the judgment and order dated 3rd november,
2004 passed by the high court of punjab & haryana in election petition no.
26 of 2002. By the said order, the high court dismissed the election petition
filed by the appellant- petitioner upholding preliminary objection raised by
the respondent that the petitioner had failed to disclose material facts as to
corrupt practice constituting the cause of action in the election petition.
appreciate the controversy raised in the present appeal, few relevant facts may
be stated. On december 26, 2001, election for constitution of punjab
legislative assembly was announced. On january 16, 2002, hon'ble the president
of india issued a notification calling upon the electors in the state of punjab
to elect their representatives for punjab vidhan sabha. Various stages of
election were fixed. As per the notification, january 23, 2002 was the last
date for filing nominations by candidates aspiring to be elected to punjab
vidhan sabha. Scrutiny of nomination papers was fixed as january 24, 2002 and
the last date of withdrawal of nomination was january 28, 2002. Polling was to
take place on february 13, 2002 and february 24, 2002 was the date of the
counting of votes and of declaration of result.
respondent herein filed his nomination from 76, patiala town assembly
constituency as the candidate nominated by congress (i) party. The respondent
was declared as elected. He was also elected as the leader of the party and
became the chief minister of punjab.
appellant herein-petitioner before the high court- was an elector in the
constituency from which the respondent contested the election. The petitioner
filed an election petition in the high court under section 81 of the
representation of the people act, 1951 (hereinafter referred to as 'the act')
questioning the election of the respondent to the punjab legislative assembly
from 76, patiala town assembly constituency on the ground of corrupt practice
as detailed in the election petition. A prayer was, therefore, made to declare
the election of the respondent void and for issuing appropriate consequential
election petition, it was alleged by the petitioner that the respondent had
committed 'corrupt practice' as enumerated in section 123 of the act. The
particulars of corrupt practices committed by the respondent were mentioned by
the petitioner in the petition. In paras 4 and 5 of the election petition, the
petitioner stated that one bharat inder singh chahal was a government servant
holding class i gazetted post as joint director, information & public
relations department, punjab who helped the respondent immensely during the
election campaign of the respondent and despite his being holder of a post
under the state government, had actively been organizing, conducting and
participating personally in the press conferences addressed by the respondent
for the furtherance of respondent's election prospects. Particulars of corrupt
practices committed by the respondent had also been stated. It was asserted
that on january 29, 2002, mr. Chahal organized a press conference for the
respondent at new moti bagh palace, patiala along with the respondent for
enhancing the election prospects of the latter. An audio-video cassette
containing about 12 minutes clipping was recorded which news appeared in
english dailies 'tribune', 'indian express' and 'times of india'. According to
the petitioner, he was able to procure a copy of the cassette from one mr.
Jagdeep singh chowhan without any manipulation, dubbing or interpolation.
also stated that mr. G.s. cheema, chief electoral officer, punjab during media
briefing on 4th february, 2002 at the office of the chief electoral officer in
sector no.17, chandigarh disclosed that mr. Chahal had actively participated in
the election process. The election commission, therefore, directed secretary,
punjab information & public relations to take disciplinary action against
mr. Chahal for violating the code of conduct and for actively participating in congress'
election campaign. Likewise mrs. Usha r.
additional chief electoral officer, during media briefing on february 6, 2002
stated that the election commission of india had pulled up the punjab
government and asked the chief secretary of punjab to look into the matter as
to why action had not been initiated against mr. Chahal for the alleged
violation of the election code and for assisting the respondent. According to
the petitioner, this had gone long way to show that mr. Chahal actively participated
"to the knowledge of the respondent and with the consent of the
respondent" for the furtherance of his election prospects in violation of
the provisions of section 123 of the act. The secretary, information &
public relations, government of punjab issued a show cause notice to mr. Chahal
over his reported work for the congress candidate. Mr.
had also written to mr. N.k. arora, chief secretary, punjab seeking action
against mr. Chahal for alleged partisan role and for his misconduct. Mrs. Usha
r. Sharma further disclosed that a complaint filed by one mr. J.s. chowhan had
been forwarded to the election commission of india as also to the secretary,
information & public relations, punjab recommending that action should be
taken against mr. Chahal as complaint had been prima facie established. A
committee was constituted to look into the audio-video cassette and to examine
the role of mr. Chahal. According to the petitioner, the committee of
information & public relations department submitted a report that mr.
Chahal was present at the press conference of the respondent. The committee
allowed mr. Chahal to see the cassette following the principles of natural
justice and asked him to submit his reply by february 8, 2002 explaining his
conduct. The committee forwarded the report to the chief electoral officer,
punjab as also to the election commission of india. The above facts were
disclosed by mr. Cheema, chief electoral officer in a media briefing on
february 7, 2002 at chief electoral officer's office at chandigarh.
february 8, 2002, the secretary, information & public relations department,
punjab recommended to the cabinet minister for information & public
relations department to issue charge-sheet to mr. Chahal for a major penalty on
his having worked actively for the election campaign of the chief of the punjab
pradesh congress committee-respondent herein.
In para 6
of the petition, the petitioner stated that mr. Chahal played a dominant,
significant and active role during the election campaign of the respondent
which fact was further corroborated from the fact that mr. Chahal was suitably
rewarded for herculean efforts put up by him with his appointment on february
28, 2002 as advisor to the chief minister-respondent herein.
stated that the respondent took oath as chief minister of punjab on february
27, 2002. He accepted the resignation of mr. Chahal as joint director, public
relations department, punjab on february 28, 2002. On the same day, the
respondent appointed mr. Chahal as 'advisor to the chief minister' and an
appointment letter was issued. In the 'indian express' dated march 1, 2002, it
was reported that mr. Chahal's career in public relations department was marked
by 'string of controversies' (para 7).
petitioner, in the election petition, has also said about other corrupt
practices adopted by the respondent. In paras 8 and 9, it was averred that the
respondent had procured assistance of one gurnam singh mehra, superintendent of
police, patiala for furtherance of the prospects of his election. The details
of the corrupt practice had also been specified in para 9 of the petition. It
was said that mr. Mehra belonged to kashyap rajput community. Mr. Mehra
organized a function on january 26, 2002 in favour of congress candidate for
76, patiala town assembly constituency (of the respondent) which was presided
over by smt. Preneet kaur, member of parliament, patiala and wife of the
respondent. The meeting was organized at marriage palace near railway phatak
no.22, patiala. For the said meeting, mr. Mehra used the office of his newly
created mehra biradri social sangathan in which posters were distributed with a
photograph of mr. Mehra as superintendent of police in police uniform
describing the respondent as 'garibon ka massiha'. The name of the sangathan
was shown at the bottom. Mr. Mehra thus canvassed for the respondent in the
said meeting. Those facts appeared as a news item in the english edition of the
'tribune' dated february 5, 2002.
to the petitioner, the respondent also committed corrupt practice by indirectly
interfering with the free exercise of electoral rights by projecting himself as
the 'maharaja of patiala' in the posters issued by the respondent and also by
his supporters with his consent.
the petitioner alleged that the respondent had incurred expenses far more than
the prescribed limit of rs.6 lakhs under rule 90 of the conduct of election
rules, 1961 (hereinafter referred to as 'the rules') and maintained improper
and incorrect accounts of the expenditure incurred and thereby he violated the
provisions of section 77 of the act. The respondent had not shown the expenses
of press conference held on january 29, 2002 at new moti bagh palace, patiala
or of the 'heavy tea' served at the said conference in his election return
basis of above allegations, the petitioner stated that the election of
respondent to 76, patiala town assembly constituency was liable to be declared
void under section 100 of the act. The election petition was verified and was
filed on april 10, 2002.
in the form of written statement was filed by the respondent controverting the
averments made and denying the allegations levelled by the petitioner in the
objections were also raised by the respondent, inter alia, contending that the
election petition was liable to be dismissed as the petitioner had failed to
comply with the mandatory requirement of filing an affidavit in form 25 read
with rule 94-a of the rules as required by section 83 of the act. According to
the respondent, the affidavit was not legal and valid. An affidavit, under the
rules, was required to be attested either on oath or on solemn affirmation. The
affidavit filed by the petitioner was neither sworn nor it was on solemn
affirmation. Both the expressions 'sworn' and 'solemn affirmation' were
mentioned mechanically. The affidavit thus did not conform to the mandatory
requirement of form 25 read with rule 94-a and the petition was liable to be
dismissed on that ground.
also stated that the election petition did not contain "material
facts" much less "material particulars" of alleged corrupt
practices mentioned in the election petition. The so called allegations, stated
the respondent, were vague, bald, unnecessary, irrelevant, frivolous and did
not disclose any cause of action. The averments were intended to prejudice,
embarrass and delay fair trial of the election petition.
and 7 of the election petition were liable to be struck off being unnecessary.
The averments in those paras did not pertain to the period from the date of
filing of the nomination papers, had no relevance and did not fall within the
ambit and scope of section 100 read with section 123 of the act. Contents of
para 4 did not disclose material facts but the language of section 123(7)(a) of
the act had been mechanically reproduced by the petitioner. According to the
respondent, para 4 did not contain material facts as to how and in what manner
the help of mr. Chahal was sought or obtained for furtherance of the election
result of the respondent, in what form the so called assistance was rendered
and how it affected the electoral rights of the voters of 76, patiala town
assembly constituency. Para 5 similarly did not disclose material particulars
required by law. The reference to organizing, conducting and participating
personally in press conferences by mr. Chahal addressed by the respondent was
vague, scandalous and frivolous. The contents failed to disclose essential
ingredients of corrupt practice as contemplated by section 123(7)(a) of the
act. The so called press conference dated january 29, 2002 was organized and
addressed by the respondent as president of the punjab pradesh congress
committee and it had absolutely no connection with his election to 76, patiala
town assembly constituency. The respondent has also stated that it was not
disclosed by the petitioner as to who was the author of the audio-video
cassette, how the copy of the cassette came to the hands of jagdeep singh
chowhan and how the said copy was free from any manipulation, dubbing and
interpolation particularly when the original audio-video cassette was not on
record. Even the transcript in english of the cassette had not been produced.
assistance of mr. Mehra, superintendent of police, patiala, it was contended by
the respondent that in the absence of basic ingredients of section 123(7)(d) of
the act that the function held on january 26, 2002 was with the consent of the
respondent or his election agent, there was nothing to show how it could
connect the respondent with the said function.
As to the
allegation of respondent projecting himself as 'maharaja of patiala', it was
stated that no such poster had been placed on record nor the contents of the poster
had been reproduced.
material facts had come on record of undue influence.
election expenses, the averments were totally vague, unnecessary and frivolous.
The averments had been made with a view to prejudice and embarrass, with the
object of delaying fair trial of the election petition. The provisions of
section 77 were not attracted.
also, it was contended by the respondent that no corrupt practice had been
adopted by him and the allegations levelled against him were incorrect. It was,
therefore, submitted that the election petition was liable to be dismissed.
replication to the written statement of the respondent was filed by the
petitioner contending that the preliminary objections raised by the respondent
were incorrect and false. Regarding affidavit and verification, it was stated
that if the court comes to the conclusion that there were some defects in the
affidavit, permission may be granted to the petitioner to file a fresh
affidavit. So far as corrupt practices are concerned, according to the
petitioner, material facts and particulars had already been stated in the election
allegations were clear, precise and disclosed a cause of action.
averments made in the election petition have been reiterated in the replication
by giving several instances. It was repeated that corrupt practice had been
adopted by the respondent. The election petition was thus required to be
allowed by setting aside the election of the respondent.
basis of rival contentions of the parties, the high court framed nine issues.
It was contended on behalf of the respondent that the election petition was
liable to be dismissed as preliminary objections raised by the respondent were
well founded. The court, accordingly ordered to treat issue nos. 5 to 8 as
preliminary issues which were as under:
Whether the election petition is liable to be dismissed as the allegations of
corrupt practice are not supported by a valid and legal affidavit as mentioned
in preliminary objection no.1 and 2 of the written statement? Opr
Whether the election petition lacks material facts and particulars and
discloses no cause of action as mentioned in preliminary objection no.3 to 10
of the written statement? Opr
Whether the election petition is liable to be dismissed being incomplete as
mentioned in para no.11 of the preliminary objections of the written statement?
Whether the election petition is not verified as required under order 6 rule 15
of c.p.c., if so its effect? Opr issues 5 and 8 related to the affidavit and
verification of election petition. After considering the submissions of both
the sides and referring to the relevant provisions of law in the light of
decisions of this court, the high court held that the election petition was not
liable to be dismissed on the ground of defect, if any, in verification and
affidavit. Even if there was some defect, it was 'curable' and not fatal to the
election petition. The court also observed that along with the replication, the
petitioner had placed on record an affidavit which was in conformity with the
provisions of rule 94-a and from 25 appended to the rules. The affidavit was
allowed to be placed on record without any objection by the other side. The
issues were thus decided in favour of the election petitioner.
So far as
issues 6 and 7 are concerned, the court was called upon to consider whether the
election petition lacked 'material facts' and 'particulars' and did not
disclose a cause of action and was liable to be dismissed being incomplete as
contended by the respondent.
stated that it was well established that an election petition was supposed to
disclose all 'material facts' to constitute a complete cause of action.
According to the court, an election petition should contain concise statement
of material facts and it was necessary 'to disclose fullest possible particulars'.
The court stated that the counsel cited several judgments showing the
distinction between 'material facts' and 'material particulars'. Referring to a
decision of the supreme court in hardwari lal v. Kamal singh, (1972) 1 scc 214
: (1972) 2 scr 742, the court said that the material facts are facts which if
established would give the petitioner the relief asked for. If the respondent
would not appear, the court would give verdict in favour of the petitioner. The
said view was reiterated by the court in subsequent cases also. Then referring
to para 4 of the election petition, the court observed that the said para only
contained 'reproduction of the wording of section 123(7)(a) of the act'. In the
opinion of the court, therefore, para 4 of the petition could not be treated as
the statement of material facts regarding corrupt practice.
respect of material facts and particulars given in para 5(i) regarding corrupt
practice adopted by the respondent, the court opined that though it had been
stated that mr. Chahal, a gazetted officer of the state of punjab had helped
the respondent immensely during his election and had actively been organizing
and conducting personally, press conferences addressed by the respondent for
the furtherance of his election prospects, no date, time and place of
organizing any press conference had been mentioned by the petitioner.
by the use of words actively organizing, conducting and participating in press
conferences without any further detail will constitute a material fact, which
may lead towards formation of a complete cause of action or not. This court
feels that the answer is in the negative". (emphasis supplied) the court
observed that in sub-para (ii) of para 5, one instance of press conference
which was allegedly held on january 29, 2002 by mr. Chahal had been given. It
was stated that mr. Chahal organized the press conference in new moti bagh
palace i.e. residence of the respondent. Mr. Chahal was personally present with
the respondent and meticulously organized each and every affair for better
result with the object of enhancing the prospect of the respondent. In sub-
para (iii), it was stated that the petitioner was able to procure a copy of the
cassette without any manipulation.
As to the
allegations in sub-paras (i), (ii) and (iii) of para 5, this is what the court
had to say;
reading of sub-paras (i), (ii) & (iii) clearly demonstrate that the
petitioner has failed to disclose as to what was the purpose of press
conference, what was agenda for the same, who were the press correspondents
invited and who invited them and whether any press note was prepared at the
time of press conference or not, what was addressed to the press
correspondents, it has nowhere been stated that whether any voter of the
constituency, in dispute, was present at the time of press conference".
also stated that the petitioner had not stated as to whether any proceedings of
the press conference were published in the news paper on the next day, what were
the contents of those publications and what was its effect on the general
electorate in the constituency. The court went on saying that the petitioner
had failed to give the name of a single person who had read the reporting
regarding press conference, which was allegedly conducted on january 29, 2002.
It was no where stated as to how the will of the electorate was affected and
how the press conference was an attempt for the furtherance of electoral
prospects of the returned candidate.
appears that at the time of hearing of arguments, in the presence of counsel
for the parties, video cassette was seen by the court. The court stated;
the time of arguments, in the presence of counsel for the parties, video
cassette was played in court. The press conference, as referred to above, was
being addressed by the respondent. He along with press correspondents was seen
sitting on chairs around a table. Bharat inder singh chahal was seen sitting on
the back side in second row. In between, he got up and had a half circle of the
conference hall i.e., library room of the house of the respondent. At the time
of press conference, as was evident from the video cassette, light snacks were
served to the press correspondents. Shri chahal was not seen uttering a single
word either to the respondent or to any of the press correspondents. At the
time of arguments, shri saggar read over a transcript of video cassette, which
clearly demonstrated that at the time of press conference, no appeal was made
to the electorate of the constituency of the respondent.
was conducted with respect to expulsion of rival candidates from the congress
party. It has nowhere been pleaded as to what was the object and method of
assistance provided by bharat inder singh chahal." then relying on a
decision of the supreme court in daulat ram chauhan v. Anand sharma, (1984) 2
scc 64 : air 1984 sc 621, the court observed that the allegations made in the
election petition could not be said to be in the nature of 'material facts' as
no details were given. The court stated that in the replication, all details
were given but they were "material facts" which the petitioner was
required to state in his election petition and not in the replication which was
filed beyond the period of limitation. Since in the election petition material
facts had not been stated, the petition did not disclose a cause of action and
was, therefore, liable to be dismissed.
a complaint made by jagdeep singh chowhan to the chief electoral officer, the
court observed that in the election petition it was stated that a committee was
constituted in view of allegation that mr. Chahal had violated the code of
conduct and disciplinary action was required to be taken against him. It was
recommended to issue notice to mr. Chahal for major penalty, but the petition
was silent whether such notice was issued or not. During the arguments, it
transpired that no such notice was issued despite recommendation made by the
chief electoral officer. In connection with news items, the court noted that
those news items no where indicated as to what was the quantum of help sought
from and rendered by mr. Chahal to the respondent.
6 and 7 of the petition, a reference was made regarding acceptance of
resignation of mr. Chahal by the respondent and his appointment as advisor to
the chief minister. According to the court, facts mentioned in those paras
would have been a 'corroborative piece of evidence' if the petition was capable
to be proceeded with but as the petitioner had failed to state material facts
in that regard, he could not get the benefit of the subsequent development.
allegation of assistance of mr. Mehra, superintendent of police, according to
the court, no material fact had been disclosed by the petitioner in the
petition. On the meeting held at the moti bagh palace near railway phatak no.22
in which posters were distributed with photograph of mr. Mehra in police
uniform, describing the respondent as "garibon ka massiha" showing
the name of mehra biradari social sangathan, the court stated;
court feels that averments made in this paragraph are very vague. It has not
been stated as to what was the purpose of that meeting, who were participants,
whether any voter from the constituency in dispute had come there, what was
said by mr. Mehra and how he tried to influence the voters." the court
went on to observe that it had no where been stated as to what were the
contents of that poster, who published it, whether it was circulated and who
read it. The court, therefore, felt that the petitioner had failed to disclose
material facts as required by law.
allegation of projecting himself as 'maharaja of patiala' in a poster issued by
the respondent, the court stated that the petitioner had failed to disclose material
facts as there was nothing to show that the poster was issued by the respondent
or by his supporters with his consent.
election expenses, the court observed that mere non disclosure of expenditure
would not be a corrupt practice. It is incurring of expenditure in excess of
the prescribed limit which will amount to a corrupt practice. According to the
court, very vague averments had been made simply by stating that the respondent
had incurred the expenses more than the prescribed limit, but no details had
been given. According to the court, in the election petition, it was stated
that the respondent had not shown expenses of press conference held on january
29, 2002 in his return of expenses but nothing had been stated as to what was
the total expenditure and the details had been given only in the replication.
Then referring to the video-cassette, the court observed that only light
snacks, tea and cold drinks were served to the press correspondents. The court
taking judicial note of the same, it can be said that even if those expenses
are ordered to be included in the election expenses of the respondent, the
total expenses still shall remain much below the prescribed limit".
of the above findings, the court dismissed the petition by passing the
decision on issues no.5 and 8 in favour of the petitioner, this petition, in
view of findings on issues no.6 and 7, cannot proceed further as the petitioner
has failed to disclose material facts regarding corrupt practice, as alleged,
to constitute a complete cause of action, on the basis of which any relief can
be granted to him. Accordingly, this election petition fails and the same is
dismissed. No order as to costs".
february 28, 2005, after hearing the learned counsel for the appellant, the
appeal was admitted. In view of the fact that the election petition was
dismissed at the threshold on the ground that it did not disclose cause of
action, the matter was placed for final hearing. We have heard mr. P.s. mishra,
senior advocate for the appellant and mr. R.s. cheena, senior advocate for the
deal with the respective contentions of the learned counsel for the parties, it
would be appropriate if we refer to the relevant provisions of the act. The
preamble of the act declares that the act has been enacted "to provide for
the conduct of elections of the houses of parliament and to the house or houses
of the legislature of each state, the qualifications and disqualifications for
membership of those houses, the corrupt practices and other offences at or in
connection with such elections and the decision of doubts and disputes arising
out of or in connection with such elections".
Part i is
preliminary. Part ii deals with qualifications and disqualifications for
membership of parliament and of state legislatures. While part iii provides for
issuance of notifications for elections, part iv relates to administrative
machinery for the conduct of elections. Conduct of elections has been dealt
with in part v. Part vi relates to 'disputes regarding elections'. Section 80
requires any election to be questioned only by way of election petition. Under
section 80a, it is the high court which can try election petitions.
81 provides for presentation of election petition and prescribes the period of
limitation. Section 82 declares as to who shall be joined as respondents to
such election petition. Section 83 deals with contents of petition and reads
Contents of petition.(1) an election petition (a) shall contain a concise statement
of the material facts on which the petitioner relies;
set forth full particulars of any corrupt practice that the petitioner alleges
including as full a statement as possible of the names of the parties alleged
to have committed such corrupt practice and the date and place of the
commission of each such practice; and (c) shall be signed by the petitioner and
verified in the manner laid down in the code of civil procedure, 1908 (5 of
1908) for the verification of pleadings:
that where the petitioner alleges any corrupt practice, the petition shall also
be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof.
schedule or annexure to the petition shall also be signed by the petitioner and
verified in the same manner as the petition.
84 deals with relief that can be claimed by the petitioner in an election
petition. Section 86 relates to trial of election petitions. It mandates the
high court to dismiss an election petition which does not comply with the
provisions of sections 81, 82 or 117.
117 requires the election petitioner to deposit certain amount as security for
costs of the petition). Sub-section (5) of section 86 is an enabling provision
and reads as under;
high court may, upon such terms as to costs and otherwise as it may deem fit,
allow the particulars of any corrupt practice alleged in the petition to be
amended or amplified in such manner as may in its opinion be necessary for
ensuring a fair and effective trial of the petition, but shall not allow any
amendment of the petition which will have the effect of introducing particulars
of a corrupt practice not previously alleged in the petition.
100 enumerates grounds on which election of a returned candidate may be
challenged and declared void.
of corrupt practice by a returned candidate is one of the grounds for declaring
an election to be void. The relevant part of section 100 reads thus;
Grounds for declaring election to be void(1) subject to the provisions of
sub-section (2) if the high court is of opinion (a) (b) that any corrupt
practice has been committed by a returned candidate or his election agent or by
any other person with the consent of a returned candidate or his election
high court shall declare the election of the returned candidate to be void.
section 123 declares certain practices as 'deemed to be corrupt practices'. The
material part of the said section reads as under:- "123. Corrupt
practices. the following shall be deemed to be corrupt practices for the
purposes of this act: (1) (2) undue influence, that is to say, any direct or
indirect interference or attempt to interfere on the part of the candidate or
his agent, or of any other person with the consent of the candidate or his
election agent, with the free exercise of any electoral right:
that(a) without prejudice to the generality of the provisions of this clause
any such person as is referred to therein who (i) threatens any candidate or
any elector, or any person in whom a candidate or an elector interested, with
injury of any kind including social ostracism and ex-communication or expulsion
from any caste or community; or (ii) induces or attempts to induce a candidate
or an elector to believe that he, or any person in whom he is interested, will
become or will be rendered an object of divine displeasure or spiritual
censure, shall be deemed to interfere with the free exercise of the electoral
right of such candidate or elector within the meaning of this clause;
declaration of public policy, or a promise of publication, or the mere exercise
of a legal right without intent to interfere with an electoral right, shall not
be deemed to be interference within the meaning of this clause.
(4) (5) (6) the incurring or authorizing of expenditure in contravention
of section 77.
obtaining or procuring or abetting or attempting to obtain or procure by a
candidate or his agent or, by any other person with the consent of a candidate
or his election agent, any assistance (other than the giving of vote) for the
furtherance of the prospects of that candidate's election, from any person in
the service of the government and belonging to any of the following classes,
namely:-- (a) gazetted officers;
(c) (d) members of the police forces;
section 77 speaks of election expenses and maximum amount which can be spent.
Section 78 enjoins every candidate at an election to lodge account with the
district election officer.
above provisions, it is clear that an election petition must contain a concise
statement of 'material facts' on which the petitioner relies. It should also
contain 'full particulars' of any corrupt practice that the petitioner alleges
including a full statement of names of the parties alleged to have committed
such corrupt practice and the date and place of commission of such practice.
Such election petition shall be signed by the petitioner and verified in the
manner laid down in the code of civil procedure, 1908 (hereinafter referred to
as "the code") for the verification of pleadings. It should be
accompanied by an affidavit in the prescribed form in support of allegation of
such practice and particulars thereof.
material facts, therefore, in accordance with the provisions of the act, have
to be set out in the election petition. If the material facts are not stated in
a petition, it is liable to be dismissed on that ground as the case would be
covered by clause (a) of sub-section (1) of section 83 of the act read with
clause (a) of rule 11 of order vii of the code.
expression 'material facts' has neither been defined in the act nor in the
code. According to the dictionary meaning, 'material' means 'fundamental',
'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential',
'pivotal', indispensable', 'elementary' or 'primary'. [burton's legal
thesaurus, (third edn.); p.349]. The phrase 'material facts', therefore, may be
said to be those facts upon which a party relies for his claim or defence. In
other words, 'material facts' are facts upon which the plaintiff's cause of
action or the defendant's defence depends. What particulars could be said to be
'material facts' would depend upon the facts of each case and no rule of
universal application can be laid down. It is, however, absolutely essential
that all basic and primary facts which must be proved at the trial by the party
to establish the existence of a cause of action or defence are material facts
and must be stated in the pleading by the party.
leadings case of phillips v. Phillips, (1878) 4 qbd 127 :
48 lj qb
135, cotton, l.j. stated:
particulars are to be stated must depend on the facts of each case. But in my
opinion it is absolutely essential that the pleading, not to be embarrassing to
the defendants, should state those facts which will put the defendants on their
guard and tell them what they have to meet when the case comes on for
trial." in bruce v. Odhams press ltd., (1936) 1 kb 697 : (1936) 1 all er
287, scott, l.j. referring to phillips v. Phillips observed:
cardinal provision in rule 4 is that the statement of claim must state the
material facts. The word 'material' means necessary for the purpose of
formulating a complete cause of action; and if any one 'material' statement is
omitted, the statement of claim is bad; it is 'demurrable' in the old
phraseology, and in the new is liable to be 'struck out' under r.s.c. order 25
rule 4 (see phillips v. Phillips); or 'a further and better statement of claim'
may be ordered under rule 7." a distinction between 'material facts' and
'particulars', however, must not be overlooked. 'Material facts' are primary or
basic facts which must be pleaded by the plaintiff or by the defendant in
support of the case set up by him either to prove his cause of action or
defence. 'Particulars', on the other hand, are details in support of material
facts pleaded by the party. They amplify, refine and embellish material facts
by giving distinctive touch to the basic contours of a picture already drawn so
as to make it full, more clear and more informative. 'Particulars' thus ensure
conduct of fair trial and would not take the opposite party by surprise.
'material facts' must be pleaded by the party in support of the case set up by
him. Since the object and purpose is to enable the opposite party to know the
case he has to meet with, in the absence of pleading, a party cannot be allowed
to lead evidence. Failure to state even a single material fact, hence, will
entail dismissal of the suit or petition. Particulars, on the other hand, are
the details of the case which is in the nature of evidence a party would be
leading at the time of trial.
halsbury's laws of england, (4th edn.); vol.36; para 38, it has been stated;
function of particulars is to carry into operation the overriding principle
that the litigation between the parties, and particularly the trial, should be
conducted fairly, openly and without surprises, and incidentally to reduce
costs. This function has been variously stated, namely either to limit the
generality of the allegations in the pleadings, or to define the issues which
have to be tried and for which discovery is required. Each party is entitled to
know the case that is intended to be made against him at the trial, and to have
such particulars of his opponent's case as will prevent him from being taken by
surprise. Particulars enable the other party to decide what evidence he ought
to be prepared with and to prepare for the trial. A party is bound by the facts
included in the particulars, and he may not rely on any other facts at the
trial without obtaining the leave of the court." in connection with
election matters, this court has considered the question in several cases. In
balwan singh v. Lakshmi narain & ors., 1960 (3) scr 91 : air 1960 sc 770,
in an election petition, an allegation of corrupt practice of hiring or
procuring vehicles by returned candidate had been made. It was contended on
behalf of the respondent that full particulars as to contract of hiring
vehicles had not been set out in the election petition. The petition was,
therefore, liable to be dismissed. The constitution bench of this court was
called upon to consider the requirement of sections 83 and 123 of the act in
the light of the allegation in the election petition. Speaking for the
majority, shah, j. (as his lordship then was) observed that neither in the
petition as originally filed nor as amended, the date and place of hiring of
vehicle alleged to have been used for conveying the voters, and the names of
the persons between whom the contract of hiring was settled were set out. The
question, however, was whether the election petition was liable to be rejected
because it did not set forth particulars of date and place of hiring the
vehicle alleged to have been used in conveying voters? The court answered the
question in the negative and stated;
corrupt practice being the hiring or procuring of a vehicle for the conveyance
of the electors, if full particulars of conveying by a vehicle of electors to
or from any polling station are given, section 83 is duly complied with, even
if the particulars of the contract of hiring, as distinguished from the fact of
hiring, are not given. Normally, the arrangement for hiring or procuring a
vehicle, is within the special knowledge of the parties to that agreement and
it is difficult to assume that it as intended to require the petitioner in an
election dispute to set out the particulars of facts within the special
knowledge of the other party, and expose the petition to a penalty of dismissal
if those particulars could not b given. If particulars in support of the plea
of the vehicle being hired or procured by the candidate or his agent or by
another person was used for conveying voters to or from the polling station are
set out, failure to set out particulars of the contract of hiring or
arrangement of procuring will not render the petition defective".
proceeded to observe;
practice to be followed in cases where insufficient particulars of a corrupt
practice are set forth in an election petition is this. An election petition is
not liable to be dismissed in limine merely because full particulars of a
corrupt practice alleged in the petition, are not set out. Where an objection
is raised by the respondent that a petition is defective because full
particulars of an alleged corrupt practice are not set out, the tribunal is
bound to decide whether the objection is well founded.
tribunal upholds the objection, it should give an opportunity to the petitioner
to apply for leave to amend or amplify the particulars of the corrupt practice
alleged; and in the event of noncompliance with that order the tribunal may
strike out the charges which remain vague. Insistence upon full particulars of
corrupt practices is undoubtedly of paramount importance in the trial of an
election petition, but if the parties go to trial despite the absence of full
particulars of the corrupt practice alleged, and evidence of the contesting
parties is led on the plea raised by the petition, the petition cannot
thereafter be dismissed for want of particulars, because the defect is one of
procedure and not one of jurisdiction of the tribunal to adjudicate upon the
plea in the absence of particulars". (emphasis supplied) in r.m. seshadri
v. G. Vasantha pai, 1969 (1) scc 27, allegation as to corrupt practice had been
made in the election petition. It was alleged that the returned candidate was
responsible for employing cars, hired and procured for the conveyance of the
voters to the polling booths. It was contended by the returned candidate that
the allegation was vague and the petition was liable to be dismissed. Rejecting
the contention, the court held that it had been sufficiently pleaded and proved
that cars were in fact used. The connection with the returned candidate with
the use of the cars had been specifically pleaded. In the opinion of the court,
"the rest were matters of evidence which did not require to be pleaded and
that plea could always be supported by evidence to show the source from where
the cars were obtained, who hired or procured them and who used them for the
conveyance of voters." (emphasis supplied) in s.n. balakrishna etc. V.
George fernandez & ors. Etc., (1969) 3 scc 238 : air 1969 sc 1201, the
court again considered a similar question. Referring to the relevant provisions
of the act, the court held that section 83 which provides that the election
petition must contain a concise statement of material facts on which the
petitioner relies and further that he must also set forth full particulars of
any corrupt practice that the petitioner alleges including as full a statement
as possible of the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice is
mandatory. Then, drawing the distinction between 'material facts' and 'particulars',
the court observed;
is the difference between material facts and particulars? The word 'material'
shows that the facts necessary to formulate a complete cause of action must be
stated. Omission of a single material fact leads to an incomplete cause of
action and the statement of claim becomes bad. The function of particulars is
to present as full a picture of the cause of action with such further
information in detail as to make the opposite party understand the case he will
have to meet. There may be some overlapping between material facts and
particulars but the two are quite distinct. Thus the material facts will
mention that a statement of fact (which must be set out) was made and it must
be alleged that it refers to the character and conduct of the candidate that it
is false or which the returned candidate believes to be false or does not
believe to be true and that it is calculated to prejudice the chances of the
petitioner. In the particulars the name of the person making the statement, with
the date, time and place will be mentioned. The material facts thus will show
the ground of corrupt practice and the complete cause of action and the
particulars will give the necessary information to present a full picture of
the cause of action. In stating the material facts it will not do merely to
quote the words of the section because then the efficacy of the words 'material
facts' will be lost. The fact which constitutes the corrupt practice must be
stated and the fact must be correlated to one of the heads of corrupt practice.
Just as a plaint without disclosing a proper cause of action cannot be said to
be a good plaint, so also an election petition without the material facts
relating to a corrupt practice is no election petition at all. A petition which
merely cites the sections cannot be said to disclose a cause of action where
the allegation is the making of a false statement. That statement must appear
and the particulars must be full as to the person making the statement and the
to sub-section (5) of section 86 of the act which allows the court the
amendment in the petition, the court stated;
power of amendment is given in respect of particulars but there is a
prohibition against an amendment "which will have the effect of
introducing particulars if a corrupt practice not previously alleged in the
petition." one alleges the corrupt practice in the material facts and they
must show a complete cause of action. If a petitioner has omitted to allege a corrupt
practice, he cannot be permitted to give particulars of the corrupt practice.
The argument that the latter part of the fifth sub-section is directory only
cannot stand in view of the contrast in the language of the two parts. The
first part is enabling and the second part creates a positive bar. Therefore,
if a corrupt practice is not alleged, the particulars cannot be supplied. There
is however a difference of approach between the several corrupt practices. If
for example the charge is bribery of voters and the particulars give a few
instances, other instances can be added; if the charge is use of vehicles for
free carriage of voters, the particulars of the cars employed may be amplified.
But if the charge is that an agent did something, it cannot be amplified by
giving particulars of acts on the part of the candidate or vice versa. In the
scheme of election law they are separate corrupt practices which cannot be said
to grow out of the material facts related to another person. Publication of
false statements by an agent is one cause of action, publication of false
statements, by the candidate is quite a different cause of action".
narain v. Indira nehru gandhi & anr., (1972) 3 scc 850, some of the
principles had been elaborated which are relevant and they are as under;
while a corrupt practice has got to be strictly proved, it does not follow that
a pleading in an election proceeding should receive a strict construction. Even
a defective charge does not vitiate a criminal trial unless it is proved that
the same has prejudiced the accused. If a pleading on a reasonable construction
could sustain the action, the court should accept that construction. The courts
are reluctant to frustrate an action on technical grounds.
charge of corrupt practice in an election petition is a very serious charge and
has to be proved. It may or may not be proved. The allegations may be
ultimately proved or not proved. But the question for the courts is whether a
petitioner should be refused an opportunity to prove those allegations merely
because the petition was drafted clumsily. Opportunity to prove should not be
the allegations made in an election petition regarding a corrupt practice do
not disclose the constituent parts of the corrupt practice alleged, the same
will not be allowed to be proved and those allegations cannot be amended after
the period of limitation for filing an election petition, but the court may
allow particulars of any corrupt practice alleged in the petition to be amended
facts" in section 83 of the representation of people act, 1951 shows that
the ground of corrupt practice and the facts necessary to formulate a complete
cause of action must be stated. The function of the particulars is to present a
full picture of the cause of action so as to make the opposite party understand
the case he has to meet. Under section 86(5) of the representation of people
act if the corrupt practice is alleged in the petition the particulars of such
corrupt practice may be amended or amplified.
election petition is not liable to be dismissed in limine because full
particulars of corrupt practice alleged were not set out. If an objection was
taken and the tribunal was of the view that full particulars have not been set
out, the petitioner has to be given an opportunity to amend or amplify the
particulars. It is only in the event of non-compliance with such order to
supply the particulars, that the charge which remained vague could be struck
stated that rules of pleadings are intended as aids for a fair trial and for
reaching a just decision. An action at law should not be equated with a game of
chess. Provisions of law are not mere formulae to be observed as rituals.
Beneath the words of a provision of law, generally speaking there lies a
juristic principle. It is the duty of the court to ascertain that principle and
reliance was placed by learned counsel for the respondent on hardwari lal
before the high court as well as before us. The high court also passed the
impugned order on the basis of the said decision. In hardwari lal, an election
petition was filed by the petitioner alleging corrupt practice against the
successful candidate. The corrupt practice as adopted by the returned candidate
had been set out in paragraph 16 of the petition which read as under-
"that the respondent committed the corrupt practice of obtaining and
procuring or attempting to obtain and procure the assistance for the
furtherance of the prospects of his election from the following persons who are
in the service of the government and belong to the prohibited classes within
the meaning of section 123 (7) of the act:
chand ram rathi, lecturer in political science, government college, gurgaon.
gulab singh, b.a., b.ed., government high court (school) jaharsa (gurgaon).
Bhim singh, assistant sub-inspector, police security lines, lyton road, new
Chhattar singh, m.a., b.t. teacher v and p.o. bharai via bahadurgarh, district
Mukhtiar singh, inspector of police, delhi.
Raghbir singh, m.a., b.t., chandigarh.
respondent has written letters under his own signatures to the above government
servants soliciting their help and assistance in furtherance of the prospects
of his election." (emphasis supplied) a preliminary objection was raised
by the returned candidate that paragraph 16 did not give necessary particulars
about the nature of assistance, the place and date where and when such assistance
was sought or received from the persons named in the petition.
the preliminary objection and reproducing sub- section (7) of section 123 of
the act, the court stated that 'obtaining', 'procuring', abetting', or
'attempting to obtain or procure' assistance are different forms of corrupt
practice. The court stated;
has to be noticed that the different expressions obtaining, procuring, abetting
or attempting to obtain or procure are various forms of corrupt practices. It
has to be found as to whether the allegation of obtaining assistance amounted
to an allegation of fact. It is well settled that general expression like
'fraudulently', 'negligently' or 'maliciously' in pleadings do not amount to
any allegation of fact. A fact is after all not a mere word". (emphasis
supplied) according to the court, the provisions of the section indicate
various heads of corrupt practice, such as, obtaining by a candidate or his
agent or by any other person, any assistance, or procuring such assistance or
abetting of such assistance or attempting to obtain or procure such assistance.
The material facts, therefore, were required to be alleged as to whether the
candidate obtained or procured or abetted or attempted to obtain or procure
paragraph 16 of the election petition one will search in vain to find out as to
whether the allegations against the appellant are in regard to the assistance
under both heads or either head from each of the six persons mentioned there.
One will speculate as to whether the appellant obtained and procured or attempted
to obtain and procure assistance from each or some of the persons mentioned
there. Obtaining or procuring or attempting to obtain or procure assistance are
separate and independent forms of corrupt practice.
guess as to whether the allegations are that the appellant committed all or one
or more of the corrupt practices of obtaining, procuring, attempting to obtain
or procure assistance from each of the persons mentioned there. One will also
conjecture and hazard as to what assistance was obtained or procured or
attempted to obtain or procure from each of the persons mentioned there, for
the furtherance of the prospects of that candidate's election." (emphasis
supplied) merely alleging that the respondent obtained or procured or attempted
to obtain or procure assistance are extracting words from the statute and it
will have no meaning unless and until facts are stated to show what that
assistance was and how the prospect of election was furthered by such
assistance. According to the court, material facts are facts which if
established would give the petitioner the relief asked for. If the respondent
had not appeared could the court have given a verdict in favour of the election
petitioner? In the opinion of the court, the answer was in the negative because
the allegations in the petition did not disclose any cause of action.
was made to another leading decision of this court in udhav singh v. Madhav rao
scindia, (1976) 2 scr 246 : (1977) 1 scc 511. As we have already seen above,
both the code and the act employ the expression 'material facts'. Whereas rule
2 of order vi of the code uses the term 'particulars', clause (b) of
sub-section (1) of section 83 of the act uses the phrase 'full particulars'.
But, neither the code nor the act employs the expression 'material
particulars'. Though the phrase 'material particulars' had been used by this
court in some cases [see pratap singh v. Rajinder singh & anr.; (1975) 1
scc 535 : air 1975 sc 1045; d. Venkata reddy v. R.
& ors.; (1976) 2 scc 455 : air 1976 sc 1599], probably for the first time,
distinction was sought to be made between the two in udhav singh.
the ambit and scope of section 83 of the act in udhav singh, the court stated;
the code of civil procedure, this section also envisages a distinction between
material facts and material particulars. Clause (a) of sub-section (1)
corresponds to o.6, r.2, while clause (b) 257 is analogous to order 6 rules 4
and 6 of the code. The distinction between "material facts" and
"material particulars" is important because different consequences
may flow from a deficiency of such facts or particulars in the pleading.
Failure to plead even a single material fact leads to an incomplete cause of
action and incomplete allegations of such a charge are liable to be struck off
under order 6, rule 16, code of civil procedure. If the petition is based
solely on those allegations which suffer from lack of material facts, the
petition is liable to be summarily rejected for want of a cause of action. In
the case of a petition suffering from a deficiency of material particulars, the
court has a discretion to allow the petitioner to supply the required
particulars even after the expiry of limitation.
primary facts which must be proved at the trial by a party to establish the
existence of a cause of action nor his defence, are "material facts".
In the context of a charge of corrupt practice, "material facts"
would mean all the basic facts constituting the ingredients of the particular corrupt
practice alleged, which the petitioner is bound to substantiate before he can
succeed on that charge. Whether in an election- petition, a particular fact is
material or not, and as such required to be pleaded is a question which depends
on the nature of the charge levelled, the ground relied upon and the special
circumstances of the case. In short, all those facts which are essential to
clothe the petitioner with a complete cause of action, are "material
facts" which must be pleaded and failure to plead even a single material
fact amounts to disobedience of the mandate of sec. 83(1) (a).
on the other hand, are "the details of the case set up by the party".
"material particulars" within the contemplation of clause (b) of s.
83(i) would therefore mean all the details which are necessary to amplify,
refine and embellish the material facts already pleaded in the petition in
compliance with the requirements of clause (a). 'Particulars' serve the purpose
of finishing touches to the basic contours of a picture already drawn, to make
it full, more detailed and more informative." the court observed that the
distinction between 'material facts' and 'material particulars' was pointed out
by the court in several cases including hardwari lal. We have gone through
those cases and in none of those cases, the distinction was drawn between
'material facts' and 'material particulars'. What had been done by this court
was drawing of distinction between 'material facts' and 'particulars' or 'full
mani v. P.j. antony & ors., (1979) 2 scc 221, this court indicated that
while alleging corrupt practice in an election petition, substance of the
allegation alone is material. The allegations must be read as a whole. Precise
material or contemporaneous record of the averments regarding allegations
should be produced. But, when it comes to proof, since commission of corrupt
practice at an election is a very serious matter not only for the candidate but
also for the public at large as it relates to the purity of electoral process
and is in the nature of quasi-criminal proceedings, it must be established
beyond reasonable doubt and not merely by preponderance of probabilities.
hussain v. Rajiv gandhi, 1986 supp scc 315 : air 1986 sc 1253, it was observed
that the law as to corrupt practice is well settled. In the context of a charge
of corrupt practice, it would mean that the basic facts which constitute the
ingredients of a corrupt practice alleged by the petitioner must be specific in
order to succeed on the charge. Whether in an election petition, a particular
fact is material or not and as such required to be pleaded is dependent on the
nature of the charge levelled and the circumstances of the case. All the facts
which are essential to clothe the petition with complete cause of action must
be pleaded. Failure to plead even a single material fact would amount to
non-compliance with the mandate of section 83(1)(a) of the act and the election
petition is liable to be dismissed.
court, however, drew the distinction between 'material facts' and
'particulars'. According to the court, 'material facts' are facts, if
established would give the petitioner the relief prayed for.
is whether the court could have given a direct verdict in favour of the
election petitioner in case the returned candidate had not appeared to oppose
the election petition on the basis of the facts pleaded in the petition.
sapa & ors. Etc. V. Singora & ors. Etc., (1991) 3 scc 375, this court
held that section 83(1)(a) stipulates that every election petition shall
contain a concise statement of material facts on which the petitioner relies.
It means that entire bundle of facts which would constitute a complete cause of
action must be concisely stated in the petition. Clause (b) of the said section
then requires an election petitioner to set forth 'full particulars' of any
corrupt practice alleged against a returned candidate. According to the court,
those particulars are obviously different from the 'material facts' on which
the petition is founded and are intended to afford to the returned candidate an
adequate opportunity to effectively meet with such an allegation. The
underlying idea in requiring the election petitioner to set out in a concise
manner all the 'material facts' as well as 'full particulars', where commission
of corrupt practice is complained of, is to delineate the scope, ambit and
limits of the inquiry at the trial of the election petition.
also observed that the power of amendment granted by section 86(5) of the act
is relatable to clause (b) of section 83(1) and is coupled with a prohibition,
namely, that the amendment will not relate to a corrupt practice not already
pleaded in the election petition. The power is not referable to clause (a) of
section 83(1) as the plain language of section 86(5) confines itself to the
amendments of 'particulars' of any corrupt practice alleged in the petition and
does not extend to 'material facts'. It is clear from the trinity of clauses (a)
and (b) of section 83 and sub-section (5) of section 86 that there is
distinction between 'material facts' referred to in clause (a) of section 83
and 'particulars' referred to in clause (b) of the said section and sub-section
(5) of section 86 applies to the latter and not to the former.
gajanan krishnaji bapat & anr. V. Dattaji raghobaji meghe & ors.,
(1995) 5 scc 347, the court stated that section 83 provides that the election
petition must contain a concise statement of material facts on which the petitioner
relies. He must also set forth full particulars of the corrupt practice
including as full a statement as possible of the name of the parties alleged to
have committed such corrupt practice and the date and place of the commission
of each of such corrupt practice. The section has been held to be mandatory
which requires first a concise statement of material facts and then full
particulars of the corrupt practice, so as to present a full picture of the
cause of action.
shivaramagowda, etc. V. T.m. chandrashekar etc., (1999) 1 scc 666 : jt 1998 (8)
sc 278, referring to udhav singh, the court used two expressions, 'material
facts' and 'material particulars' and held that while failure to plead material
facts is fatal to the election petition and no amendment of the pleading could
be allowed to introduce such material facts after the time limit prescribed for
filing the election petition is over, absence of material particulars can be
cured at a later stage by an appropriate amendment.
In v.s. achuthanandan
v. P.j. francis & anr., (1999) 3 scc 737, referring to udhav singh, the
court drew the distinction between 'material facts' and 'material particulars'.
It was observed that material facts are preliminary facts disclosing cause of
action and they have to be specifically pleaded. Failure to do so would result
in rejection of the election petition. Defect in material particulars, however,
can be cured at a later stage by amendment and the petition cannot be dismissed
in limine on the ground of such defect.
Narayanaswamy v. C.p. thirunavukkarasu, (2000) 2 scc 294 : jt 2000 (1) sc 194,
again the court discussed two phrases 'material facts' and 'material
particulars'. Drawing the distinction between the two, the court held that
while failure to plead material facts was fatal to the petition, absence of
material particulars could be cured subsequently.
shanker jain v. Sonia gandhi, (2001) 8 scc 233, referring to s.n. balakrishna,
the court held that quoting the words of the section like chanting of a mantra
does not amount to stating material facts. Material facts would include
positive statement of facts as also positive averment of a negative fact, if
to plead 'material facts' is fatal to the election petition and no amendment of
the pleadings is permissible to introduce such material facts after the
time-limit prescribed for filing the election petition.
also stated that it is the duty of the court to examine the petition
irrespective of any written statement or denial and reject the petition if it
does not disclose a cause of action. To enable a court to reject a plaint on
the ground that it does not disclose a cause of action, it should look at the
plaint and nothing else.
santosh yadav v. Narender singh, (2002) 1 scc 160, the court stated that an
election petition must set out all material facts wherefrom inferences vital to
the success of the election petitioner and enabling the court to grant the
relief prayed for by the petitioner can be drawn subject to the averments being
substantiated by cogent evidence. Concise and specific pleadings setting out
all material facts and then cogent affirmative evidence being adduced in
support of such averments, are indispensable to the success of an election petition.
An election petition, if allowed, results in avoiding an election and
nullifying the success of a returned candidate. It is a serious step and,
therefore, an election petition seeking relief on the ground of corrupt
practice must precisely allege all material facts on which the petitioner
relies in support of the plea.
mahadeorao sukaji shivankar v. Ramaratan bapu & others, (2004) 7 scc 181,
dealing with 'material facts' and 'particulars', one of us (thakker, j.)
it is no doubt true that all material facts have to be set out in an election
petition. If material facts are not stated in a plaint or a petition, the same
is liable to be dismissed on that ground alone as the case would be covered by
clause (a) of rule 11 of order vii of the code. The question, however, is as to
whether the petitioner had set out material facts in the election petition. The
expression "material facts" has neither been defined in the act nor
in the code. It may be stated that the material facts are those facts upon
which a party relies for his claim or defence. In other words, material facts
are facts upon which the plaintiff's cause of action or defendant's defence
depends. What particulars could be said to be material facts would depend upon
the facts of each case and no rule of universal application can be laid down.
It is, however, absolutely essential that all basic and primary facts which
must be proved at the trial by the party to establish existence of cause of
action or defence are material facts and must be stated in the pleading of the
is equally well settled that there is distinction between "material
facts" and "particulars".
facts are primary or basic facts which must be pleaded by the party in support
of the case set up by him either to prove his cause of action or defence.
on the other hand, are details in support of material facts pleaded by the
party. They amplify, refine and embellish material facts by giving finishing
touch to the basic contours of a picture already drawn so as to make it full,
more clear and more informative.
ensure conduct of fair trial and would not take the opposite party by
surprise." as we have already observed earlier, in the present case,
'material facts' of corrupt practice said to have been adopted by the
respondent had been set out in the petition with full particulars. It has been
expressly stated as to how mr. Chahal who was a gazetted officer of class i in
the government of punjab assisted the respondent by doing several acts, as to
complaints made against him by authorities and taking of disciplinary action.
It has also been stated as to how a police officer, mr. Mehra, who was holding
the post of superintendent of police helped the respondent by organizing a
meeting and by distributing posters. It was also alleged that correct and
proper accounts of election expenses have not been maintained by the
respondent. Though at the time of hearing of the appeal, the allegation as to
projecting himself as 'maharaja of patiala' by the respondent had not been
pressed by the learned counsel for the appellant, full particulars had been set
out in the election petition in respect of other allegations. The high court,
in our opinion, was wholly unjustified in entering into the correctness or
otherwise of facts stated and allegations made in the election petition and in
rejecting the petition holding that it did not state material facts and thus
did not disclose a cause of action. The high court, in our considered view,
stepped into prohibited area of appreciating the evidence and by entering into
merits of the case which would be permissible only at the stage of trial of the
election petition and not at the stage of consideration whether the election
petition was maintainable.
therefore, hold that the high court was wrong in dismissing the election
petition on the ground that material facts had not been set out in the election
petition and the election petition did not disclose a cause of action. The
order passed by the high court, therefore, deserves to be quashed and set aside.
foregoing reasons, the appeal deserves to be allowed and is, accordingly,
allowed. The order passed by the high court is set aside. The election petition
no. 26 of 2002 is restored to file, and is remitted to the high court to decide
the same on merits. Since the election took place in the beginning of 2002 and
the petition was dismissed on preliminary ground as not maintainable and is
required to be decided on merits, the high court is requested to give priority
and dispose it of expeditiously. In the facts and circumstances of the case,
however, there shall be no order as to costs.