Anil
Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar [2009] INSC 1462 (20 August
2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (Civil) No.18893 of 2008) Anil Vasudev Salgaonkar ..
Appellant Versus Naresh Kushali Shigaonkar .. Respondent
Dalveer
Bhandari, J.
1.
Leave granted.
2.
This appeal is directed against the judgment and order of the High
Court of Bombay Bench at Goa passed in Election Application No.5 of 2007 in
Election Petition No.1 of 2007 on 4th July, 2008.
3.
The respondent herein has filed an election petition in the High
Court of Bombay at Goa challenging the election of the appellant (respondent
no.1 in the election petition) to Goa Legislative Assembly from 35 Sanvordem
Assembly Constituency. In the assembly elections held on 2nd June, 2007, the
appellant secured overwhelming mandate from the electorates securing 10705
votes out of total 19657 votes polled whereas, his nearest rival (respondent
no.2 in the election petition) set up by the Bharatiya Janata Party secured
only 3782 votes and the respondent (election petitioner) polled only 275 votes
and forfeited his deposits.
In the
election petition before the High Court, a prayer has been made to declare the
election of the appellant herein as null and void on ground of corrupt
practices in which the appellant indulged during the elections. The allegations
in the petition are as under:
i) The
returned candidate with an intent to secure the votes of the voters of his
constituency got 13 bore wells constructed at his own cost in the seven
villages of the said constituency;
ii) The
returned candidate had also provided ambulances to the villages namely Collem,
Sanvordem, Mollem, Dharbandora and Khirpal Dabhal as a part of his action in
luring voters to vote in his favour.
4.
It has also been alleged that the appellant indulged in the
abovementioned corrupt practices and incurred election expenditure in
contravention of section 77 of the Representation of the People Act, 1951
(hereinafter referred to as "the Act") thereby crossing the limit of
Rs.5,00,000/- prescribed under the Act and the Rules framed thereunder.
5.
The written statement to the election petition was filed by the
appellant in the High Court. The allegations mentioned in the election petition
were specifically refuted and denied in the written statement. Apart from
number of preliminary objections, it was stated by the appellant that the
election petition does not comply with the provisions of Chapter II of the Act
and is, therefore, required to be dismissed at the threshold.
6.
The appellant also stated in the written statement that the
election petition does not contain a concise statement of the material facts on
which the respondent relies and, therefore, the petition does not comply with
clause (a) of sub-section (1) of section 83 of the Act. It was also
incorporated in the written statement that the election petition does not set
forth the material facts of the alleged corrupt practice. The respondent herein
has also failed to disclose the names of the parties alleged to have committed
the corrupt practice. In the election petition, the date and place of the
commission of such alleged corrupt practice has not been mentioned and,
therefore, the election petition deserved to be dismissed as not maintainable.
7.
In the written statement it was also stated that the appellant
secured 10705 votes whereas the respondent (election petitioner) got only 275
votes. The margin is too huge to state that the candidate has been returned on
account of some alleged corrupt practice. The respondent in the election
petition is required to show that the candidate has been elected and that the
result of the election has been materially affected by any alleged corrupt practice
committed as such.
8.
The allegations of alleged corrupt practices pleaded by respondent
(election petitioner) are limited to digging of 13 bore wells in villages
falling under the constituency in question after issuance of the election
notification. The basis for this allegation is that the machinery allegedly
used to dig bore holes in the ground as mentioned in paragraph 16 of the
election petition was the same machinery owned by a third party which was hired
in the past to work for the Salgaoncar Mining Industries at Vagus valley. The
respondent in paragraph 16 of the election petition has also averred that the
owner of the Salgaoncar Mining Industries is the appellant herein and on this
sole basis the conclusion is sought to be drawn and averment made to the effect
that it is obvious that the cost of the said wells and the other wells were
borne by the returned candidate through his business concern, namely,
Salgaoncar Mining Industries.
9.
The pleadings of the said allegations of corrupt practice are
limited to digging of bore wells only and there is no pleading on the material
facts whether any water drawing equipment was installed in the said bore holes
so dug and that such bore holes became water bore wells and that the water
could be drawn from them. Neither any facts have been pleaded nor particulars
given to the effect of how and in what manner the voters were influenced in
favour of the appellant so as to cast votes in his favour. No particulars of
such voters have been given in the election petition. As such there is total
absence of material pleadings so as to prove that due to the alleged corrupt
practice the election has been vitiated in a manner that but for such bore
holes not being dug the appellant would not have been returned as a winning
candidate and either respondent herein or respondent no.2 of the election
petition could have been returned as a winning candidate.
10.
There are no averments to the effect whether such bore holes were
dug with the consent and/or active knowledge of the appellant. The estimates of
cost involved supplied in the election petition are also limited to the cost of
drilling the bore holes and not of installing the water drawing plant and
machinery in them to draw water from the bore holes. As such, the said pleading
is totally general and vague in nature and is entirely incapable of passing the
muster of the test as laid in the Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC
315 or such facts as are pleaded in the petition are capable of being later on
amplified in view of the test laid down in H.D. Revanna v. G. Puttaswamy Gowda
& Others (1999) 2 SCC 217 so as to arrive at a conclusion that a triable
case is made out.
11.
The second allegation of the alleged corrupt practice is to the
effect that the appellant herein has, in the name of his mining company viz.
M/s Salgaoncar Mining Industries Pvt. Ltd. Vagus, Palem, Bicholim, Goa, bought
5 Maruti Ambulances from M/s Sai Service Station Ltd., Verna, Salcete, Goa by
incurring a cost of Rs.2,50,000/- for each of the ambulances and the cost of
the 5 ambulances approximately would be a sum of Rs.12,50,000/- and once the
said elections were declared and he filed his nomination for the said election,
caused the said company to put the said ambulances at the disposal of the
villagers of the said villages.
12.
There are absolutely no averments with regard to which villagers
or electors had used such ambulances and for whose benefit such ambulances were
deployed so as to constitute `bribe' to the voters and that to an extent that
would have influenced the outcome of the election. It is stated that any
company operating mines on large scale with heavy machinery is under a
statutory duty to maintain safety at the mines and is, as such, statutorily
required to provide required facilities including deployment of ambulances in
adequate numbers at various mines to ensure safety of the persons working at
these mines. The various mines of Salgaoncar Mining Industries are spread over
large areas falling in the constituency.
13.
The petition is absolutely devoid of any averment with regard to
such ambulances being specifically deployed for the benefit of any elector in
the constituency much less a number of electors who would have benefited from
such service even if not admitted but proved to be true that could have
influenced the election so as to change its outcome.
14.
There are absolutely no averments to the effect that these
ambulances were deployed at which specific place, at which specific time and
for the benefit of whom and whether at the instance or with knowledge of the
appellant. As such, the said pleading is incapable of passing the test as laid
in the Azhar Hussain's case (supra) or such facts as are pleaded in the
petition are capable of being later on amplified in view of the test laid down
in H.D. Revanna's case (supra) so as to arrive at a conclusion that a triable
case is made out.
15.
The third allegation pertains to the election expenses incurred by
the appellant on the basis that amount spent on digging of bores holes as well
as the cost of 5 ambulances deployed for discharge of statutory requirements
for carrying out mining operations by a company ought to be calculated towards
the election expenses incurred by the appellant and, as such, devoid of any
merit in view of the insufficiency of pleadings in terms of `material facts'
with respect to the two main allegations of corrupt practices relating to
digging of borewells and 5 ambulances.
16.
The High Court has totally misdirected itself by misconstruing the
ratio laid down in a catena of decision pronounced by this Court including the
law laid down in Azhar Hussain's case (supra) and H.D. Revanna's case (supra)
which if properly applied to the facts and circumstances of the present case
would lead to rejection of the election petition in limine.
17.
The other important questions of law of general importance
involved in the present petition require adjudication by this Court are whether
amenities or facilities provided in general and not in particular to a candidate
or his agent or by any other person with the consent of the candidate, is a
corrupt practice or a bribery or a gratification within the meaning of section
100(1)(b) read with section 123(1) of the Act. Whether the absence of the
prescribed affidavit in Form 25 as required under Rule 94A of the Conduct of
Election Rules, 1961 and in terms of proviso to section 83 of the Act is fatal
to the maintainability of an election petition on the ground of corrupt
practices?
18.
In the election petition the respondent has mentioned that there
was scarcity of water supply in certain villages.
However,
the respondent has failed to mention the numbers of houses which face such
alleged water scarcity. In the written statement, the appellant also alleged
that the respondent in the election petition has also failed to mention about
water availability of these villages; the respondent has further failed to
mention as to since when has there been water scarcity?
19.
The appellant in the written statement further alleged that the
respondent has also not mentioned as to how many houses are there in these
villages; how many persons are living in each of the houses; and how many
persons are voters in these villages. The respondent has also not mentioned as
to how many villages have water connections;
and when
and where the water scarcity had been noticed in these villages. He has also
not mentioned as to when this complete breakdown or insufficient water supply
had occasioned to these villages nor has he mentioned the date, time, place or
any other details of such breakdown and has generally failed to give the
details as required under section 83 of the Act.
20.
In the written statement it was also stated that the drilling
machines allegedly owned by Tejaswini Bore Wells which were being operated at
Ambeudok. There is, therefore, no concrete evidence that the boreholes drilled
were bore wells to establish the flow of water from the ground table to surface
ground. Similarly, the respondent has miserably failed to give particulars as
to which villages did not have ambulances and what was the number of voters in
the said villages. The respondent has failed to give particulars regarding
parking of the ambulances i.e. where these ambulances were parked; in which
villages they were parked; whether there was any driver to drive the said
ambulances and as to where they were parked. Similarly, the respondent failed
to give particulars regarding the bore wells whose cost as alleged amounts to
Rs.6,38,557/-.
Similarly,
expenditure of Rs.12,50,000/- has been alleged to have been made for the
purchase of ambulances. The particulars have not been provided. It is not clear
as to how the respondent has come to the figure of Rs.5,00,000/- which
according to him has been spent by the appellant. He did not give any
particulars regarding either of the bore wells or the ambulances.
21.
`The appellant denied crossing the limit of Rs.5,00,000/- as
prescribed under the Act and the Rules framed thereunder. It is also alleged
that the appellant did not construct any bore wells nor did he provide any
ambulances to the villagers and, therefore, the question of showing the same in
the election expenses did not arise at all. The appellant denied that an amount
of Rs.6,38,557/- and an amount of Rs.12,50,000/- as alleged has been the
expenditure factually incurred by the appellant and denied having committed any
corrupt practice. The question of the election results being materially
affected does not arise at all and, therefore, the election petition is liable
to be dismissed.
22.
It was specifically argued that the election petition is liable to
be dismissed because there has been non compliance of section 83(1) of the Act
because there was no sufficiency and adequacy of pleadings in the election
petition. Section 83(1) of the Act reads as under:
83.
Contents of petition.--(1) An election petition-- a) shall contain a concise
statement of the material facts on which the petitioner relies;
b) shall
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:
Provided
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."
23.
According to the appellant, the High Court had erroneously held
that the election petition is not liable to be dismissed in limine under
section 86 of the Act for alleged non-compliance of the provisions of section
83(1) of the Act.
24.
In the impugned judgment, the High Court erroneously concluded
that the election petition when read as a whole discloses that it has material
facts stated and regarding which triable issues are also framed and, therefore,
it cannot be rejected at the preliminary stage.
25.
The High Court in the impugned judgment has discussed the decision
of this Court in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp. SCC
93.
According
to the appellant, the High Court erroneously distinguished this case. The
impugned judgment of the High Court is neither in consonance with the
provisions of the Act nor according to the settled legal position as has been
crystallized in a number of cases by this court.
26.
Being aggrieved by the impugned judgment, the appellant has
preferred this appeal.
27.
In this election petition, respondent no.1 has challenged
appellant's election primarily on the ground of corrupt practices, alleging
that the appellant dug bore wells in the constituency and provided ambulances
after the election notification was issued in order to lure the voters from the
constituency or induce them to vote for the appellant. According to the
appellant, the aforesaid allegations do not even on their face value constitute
corrupt practices within the meaning of Section 100 or section 123 of the Act.
The Act postulates or contemplates bribery to mean any gift, offer or promise
by a candidate of any gratification with the object, directly or indirectly of
inducing any elector in order to make him vote for him.
28.
For reference, section 100 and section 123 of the 1951 Act read as
under:- "Section 100 - Grounds for declaring election to be void -- (1)
Subject to the provisions of sub- section (2) if the High court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or
was disqualified, to be chosen to fill the seat under the Constitution or this
Act or the Government of Union Territories Act, 1963 (20 of 1963); or (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 returned candidate or his
election agent; or (c) that any nomination has been improperly rejected; or (d)
that the result of the election, in so far as it concerns a returned candidate,
has been materially affected- (i) by the improper acceptance or any nomination,
or (ii) by any corrupt practice committed in the interests of the returned
candidate by an agent other than his election agent, or (iii) by the improper
reception, refusal or rejection of any vote or the reception of any vote which
is void, or (iv) by any non-compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under this Act, the High Court
shall declare the election of the returned candidate to be void.
(2) If in
the opinion of [the High Court, a returned candidate has been guilty by an
agent other than his election agent, of any corrupt practice but the High Court
is satisfied- (a) that no such corrupt practice was committed at the election
by the candidate or his election agent, and every such corrupt practice was
committed contrary to the orders, and [without the consent], of the candidate
or his election agent;
(b)
omitted (c) that the candidate and his election agent took all reasonable means
for preventing the commission of corrupt practices at the election;
and (d)
that in all other respects the election was free from any corrupt practice on
the part of the candidate or any of his agents, then the High Court may decide
that the election of the returned candidate is not void".
"Section
123 - Corrupt practices -- The following shall be deemed to be corrupt
practices for the purposes of this Act:-- (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 objects, 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."
29.
The appellant submitted that corrupt practices pleaded by
respondent no.1 are limited to digging of 13 bore wells in villages falling
under the constituency in question after notification of holding of election
was issued. The basis for this allegation that the machinery allegedly used to
dig bore holes in the ground as provided in paragraph 16 of the election
petition and the same machinery owned by a third party which was hired in the
past to work for the Salgaoncar Mining Industries at Vagus Valley.
30.
Respondent no.1 in paragraph 16 of the election petition has
alleged that owner of the Salgaoncar Mining Industries is the appellant herein
and on this basis the conclusion is sought to be drawn and the averments made
to the effect that "it is obvious that the cost of the said wells and the
other wells were borne by the returned candidate through his business concern,
namely Salgaoncar Mining Industries".
31.
According to the appellant, the pleadings in the election petition
regarding corrupt practice are limited to digging of bore wells only and there
is no pleading on the material facts whether and in what manner the voters of
the constituency were influenced to vote in favour of the appellant. There is
no pleadings on the material facts whether any water drawing equipment was
installed in the said bore holes so dug and that such bore holes became water
bore wells and that the water could be drawn from them.
32.
The appellant submitted that there is total absence of material
pleadings so as to prove that due to the alleged corrupt practice the election
has been vitiated in a manner that such bore holes not being dug by the
appellant who has been returned as a winning candidate and either respondent
no.2 or respondent no.1 could have been returned as a winning candidate.
33.
The material fact whether such bore holes were dug with the
consent and/or active knowledge of the appellant is totally missing.
34.
The material fact regarding the estimates of costs involved is
missing and is limited to the costs of drilling the bore holes and not of
installing the water drawing plant and machinery in them to draw water from the
bore holes.
According
to the appellant, the said pleading is totally general and vague in nature.
35.
The second allegation is regarding the alleged corrupt practice by
purchasing 5 Maruti Ambulances in the name of his mining company viz. M/s
Salgaoncar Mining Industries Pvt.Ltd.
36.
According to the appellant, there are no material facts in the
pleading of the election petition that for whose benefit such ambulances were
deployed so as to constitute a `bribe' to the voters and that to an extent that
would have influenced the outcome of the election.
37.
The appellant also submitted that there are no averments with
regard to such ambulances being specifically deployed for the benefit of any
elector in the constituency.
38.
The appellant submitted that any company operating mines on large
scale with heavy machinery is under an obligatory duty to maintain safety of
the mines and is, as such, statutorily required to provide required facilities
including deployment of ambulances in adequate numbers at various mines to
ensure safety of the persons working in the mines. The various mines of
Salgaoncar Mining Industries are spread over large areas falling in the
constituency.
39.
According to the appellant there is no material fact in the
pleading of the election petition to the effect regarding the deployment of
such ambulances at which specific places at which specific time and for the
benefit of whom and whether that was done at the behest and influence of the
appellant.
40.
According to the appellant, the third allegation pertains to the
election expenses incurred by the appellant on the basis of that amount spent
on digging of bore holes as well as the cost of 5 ambulances deployed for
discharge for statutory requirement for carrying out mining operations by a
company ought to be calculated towards the election expenses incurred by the
appellant is devoid of any merit in view of the insufficiency of pleadings in
terms of `material facts' with respect to the two main allegations of corrupt
practices relating to digging of bore holes and purchase of 5 ambulances.
41.
According to the appellant, the High Court in the impugned
judgment has totally misdirected itself by misconstruing the ratio laid down in
a catena of cases pronounced by this Court. The other material questions of
general importance arising in the petition for determination by this court are
whether amenities or facilities provided in general and not in particular by a
candidate or his agent or by any other person with the consent of the
candidate, is a corrupt practice or a bribery or a gratification within the
meaning of section 100 (1)(b) read with section 123 (1) of the 1951 Act.
According to the appellant, the respondent did not furnish affidavit in Form 25
as required under Rule 94A of the Conduct of Election Rules, 1961 and in terms
of proviso to Section 83 of the Act, is fatal to the maintainability of an
election petition on the ground of corrupt practices.
42.
According to the appellant, the respondent failed to plead the
fact which constitutes an offence under section 100 of the Act and the appeal
deserves to be allowed and the election petition deserves to be dismissed.
43.
The short question which falls for adjudication in this case is
whether the election petition is liable to be dismissed because of lack of
material facts. This controversy is no long res integra. More than a century
ago, in Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB 135, Cotton, L.J.
stated:
"What
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."
44.
In Bruce v. Odhams Press Ltd. (1936) 1 KB 697:
(1936) 1
All ER 287 (CA), Scott, L.J. referring to Phillips' case (supra) observed:
"The
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."
45.
In Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, it has
been stated:
"38.
The 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."
46.
When we revert to the Indian cases, we find that our courts have
accepted the principle laid down by the English cases. We would like to refer
to some of them.
47.
In Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi & Others
(1969) 1 SCC 372, this Court observed as under:
"5.
The first question is whether the trial judge should have allowed the
amendment.
Section
83(1)(b) provides that "An election petition shall 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 commit
such corrupt practice and the date and place of the commission of each such
practice". The section is mandatory...
.............."
48.
In Samant N. Balkrishna & Another v. George Fernandez &
Others (1969) 3 SCC 238, this Court observed as under:
"37.
From our examination of all the cases that were cited before us we are
satisfied that an election petition must set out a ground or charge.
In other
words, the kind of corrupt practice which was perpetrated together with
material facts on which a charge can be made out must be stated.
It is
obvious that merely repeating the words of the statute does not amount to a
proper statement of facts and the section requires that material facts of
corrupt practices must be stated.
If the
material facts of the corrupt practice are stated more or better particulars of
the charge may be given later, but where the material facts them-selves are
missing it is impossible to think that the charge has been made or can be later
amplified. This is tantamount to the making of a fresh petition."
49.
In Hardwari Lal v. Kanwal Singh (1972)1 SCC 214, a three judge
Bench of this Court observed as under:
"22.
............ The gravamen of the charge of corrupt practice within the meaning
of Section 123(7) of the Act is obtaining or procuring or abetting or
attempting to obtain or procure any assistance other than the giving of vote.
In the absence of any suggestion as to what that assistance was the election
petition is lacking in the most vital and essential material fact to furnish a
cause of action."
50.
The question of materials facts in the election petition was
comprehensively dealt with by this Court in Azhar Hussain's case (supra). The
court observed that it is not disputed that the Code of Civil Procedure applies
to the trial of an election petition by virtue of section 87 of the
Representation of the People Act, 1950. Section 87(1) and section 87(2) of the
Act apply to the election petition.
Section
87(1) of the Act reads as under:
"87.
Procedure before the High Court - (1) Subject to the provisions of this Act and
of any rules made thereunder, every election petition shall be tried by the
High Court, as nearly as may be, in accordance with the procedure applicable
under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of the suits ;
Provided
that the High Court shall have the discretion to refuse, for reasons to be
recorded in writing, to examine any witness or witnesses if it is of the
opinion that the evidence of such witness or witnesses is not material for the
decision of the petition or that the party tendering such witness or witnesses
is doing so on frivolous grounds or with a view to delay the proceedings.
(2) xxx
xxx xxx"
51.
In this view of the matter, the court trying the election petition
can act in exercise of the powers of the Code including Order 6 Rule 16 and
Order 7 Rule 11(a) of the Code. These provisions are set out as under:
"Order
6, Rule 16: Striking out pleadings.-- The court may at any stage of the
proceedings order to be struck out or amend any matter in any pleading-- a)
which may be unnecessary, scandalous, frivolous or vexatious; or (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.
Order 7,
Rule 11(a): Rejection of plaint.-- The plaint shall be rejected in the
following cases -- a) where it does not disclose a cause of action;
xxx xxx
xxx xxx xxx xxx"
42. The
position is well settled that an election petition can be summarily dismissed
if it does not furnish the cause of action in exercise of the power under the
Code of Civil Procedure. Appropriate orders in exercise of powers under the
Code can be passed if the mandatory requirements enjoined by Section 83 of the
Act to incorporate the material facts in the election petition are not complied
with.
52.
This Court in Samant N. Balkrishna's case (supra) has expressed
itself in no uncertain terms that the omission of a single material fact would
lead to an incomplete cause of action and that an election petition without the
material facts relating to a corrupt practice is not an election petition at
all.
53.
In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511, the law has
been enunciated that all the primary facts which must be proved by a party to
establish a cause of action or his defence are material facts. In the context
of a charge of corrupt practice it would mean that the basic facts which
constitute the ingredients of the particular corrupt practice alleged by the
petitioner must be specified 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 and failure to plead
even a single material fact would amount to disobedience of the mandate of
Section 83(l)(a). An election petition therefore can be and must be dismissed
if it suffers from any such vice. The first ground of challenge must therefore
fail.
54.
In V. Narayanaswamy v. C.P. Thirunavukkarasu (2000) 2 SCC 294,
this Court reiterated the legal position that an election petition is liable to
be dismissed if it lacks in material facts.
55.
In L.R. Shivaramagowda & Others v. T.M. Chandrashekar (dead)
by LRs & Others (1999) 1 SCC 666, this Court again considered the
importance of pleadings in an election petition alleging corrupt practice
falling within the scope of Section 123 of the Act and observed as under:
56.
This Court has repeatedly stressed the importance of pleadings in
an election petition and pointed out the difference between "material
facts" and "material particulars". While the 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, the absence of material
particulars can be cured at a later stage by an appropriate
amendment......"
57.
In Udhav Singh's case (supra), this Court observed as under:
"41.
Like 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 Order 6, Rule 2, while clause (b) 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 stuck 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
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."
58.
In H.D. Revanna's case (supra), the appeal was filed by the
candidate who had succeeded in the election and whose application for dismissal
of the election petition in limine was rejected by the High Court. This Court
noticed that it has been laid down by this Court that non- compliance with the
provisions of Section 83 may lead to dismissal of the petition if the matter
falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of
Civil Procedure.
59.
In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi &
Others (2005) 5 SCC 46, this Court observed thus:
"14.
Necessary averment of facts constituting an appeal on the ground of "his
religion" to vote or to refrain from voting would be material facts within
the meaning of clause (a) of sub-section (1) of Section 83 of the Act. If such
material facts are missing, they cannot be supplied later on, after the expiry
of period of limitation for filing the election petition and the plea being
deficient, can be directed to be struck down under Order 6 Rule 16 of the Code
of Civil Procedure, 1908 and if such plea be the sole ground of filing an
election petition, the petition itself can be rejected as not disclosing a
cause of action under clause (a) of Rule 11 Order 7 of the Code."
60.
In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, this Court
again reiterated the distinction between `material facts' and `material
particulars' and observed as under:
"51.
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.
52. All
"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."
61.
In Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC 604, this Court
observed as under:
"20.
The election petition is a serious matter and it cannot be treated lightly or
in a fanciful manner nor is it given to a person who uses this as a handle for
vexatious purpose..............."
62.
It is settled legal position that all "material facts"
must be pleaded by the party in support of the case set up by him within the
period of limitation. 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 will entail dismissal of the election petition.
63.
The election petition must contain a concise statement of
"material facts" on which the petitioner relies. There is no
definition of "material facts" either in the Representation of
Peoples Act, 1951 nor in the Code of Civil Procedure. In a series of judgments,
this court has laid down that all facts necessary to formulate a complete cause
of action should be termed as "material facts". All basic and primary
facts which must be proved by a party to establish the existence of cause of
action or defence are material facts. "Material facts" in other words
mean the entire bundle of facts which would constitute a complete cause of
action.
64.
This court in Harkirat Singh's case (supra) tried to give various
meanings of "material facts". The relevant paragraph 48 of the said
judgment is reproduced as under:- "The 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."
65.
In the context of a charge of corrupt practice, "material
facts" would mean all basic facts constituting the ingredients of the
particular corrupt practice alleged, which the petitioner (respondent herein)
is bound to substantiate before he can succeed on that charge. It is also
well-settled that if "material facts" are missing they cannot be
supplied after expiry of period of limitation for filing the election petition
and the pleading becomes deficient.
66.
According to the appellant, in the election petition, there was no
averment whether the bore wells were dug with the consent and/or active
knowledge of the appellant. This averment was absolutely imperative and the
failure to mention such an important averment in the petition is fatal for the
election-petitioner (respondent herein) and the election petition is liable to
be summarily dismissed on that ground.
67.
The legal position has been crystallized by a series of the
judgments of this Court that all those facts which are essential to clothe the
election petitioner with a complete cause of action are "material
facts" which must be pleaded, and the failure to place even a single
material fact amounts to disobedience of the mandate of section 83(1)(a) of the
Act.
68.
When we apply the aforementioned test to the election petition in
this case, then the conclusion becomes irresistible that the election petition
lacks the materials facts. The election petition read as a whole does not
disclose any cause of action. Considering the facts and circumstances of this
case and principles applicable to the election petition, this appeal deserves
to be allowed and we accordingly allow this appeal. Consequently, the election
petition stands dismissed.
69.
In the facts and circumstances of this case, we direct the parties
to bear their own costs.
.................................J. (Dalveer Bhandari)
.................................J. (Harjit Singh Bedi)
New Delhi,
August 20, 2009.
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