Ram Sukh
Vs. Dinesh Aggarwal [2009] INSC 1612 (18 September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6128 OF
2008 RAM SUKH -- APPELLANT VERSUS
D.K.
JAIN, J.:
1.
This appeal under Section 116A of the Representation of the People
Act, 1951 (for short the `Act') is directed against the judgment and order
dated 15th January, 2008, rendered by the High Court of Uttaranchal at Nainital
in Writ Petition No.03 of 2007 (M/S). By the impugned order, the High Court,
upholding the preliminary objection raised by the first respondent, has
dismissed the election petition mainly on the ground that it did not comply
with the mandatory requirement of furnishing material facts so as to disclose
cause of action and was not supported by an affidavit in the prescribed form.
2.
Election to the State Legislative Assembly of Uttaranchal (now
Uttarakhand) was held on 21st February, 2007. The results were declared on 27th
February, 2007. The first respondent, who had contested the election as an
Indian National Congress candidate, was declared elected. The appellant
(hereinafter referred to as the `election petitioner') having lost the
election, as a candidate of the Nationalist Congress Party, challenged the
election of the first respondent by filing an election petition under Section
80 read with Section 100(1)(b) and (d) of the Act.
The
election of the returned candidate was challenged mainly on the grounds:
(i) that
the election petitioner having submitted 2 sets of the requisite Form-8
(Praroop-8) in respect of his election agent Manbir Singh Dagur before the
Returning Officer, who having obtained the signatures of the election
petitioner as also of the polling/election agent in proforma (Anulagnak-22),
deliberately did not send the signed Anulagnak-22 of the election petitioner to
different polling stations, with the result that his polling agent was not 2
permitted by the polling officer to act as such on the date of polls;
(ii) that
the Returning Officer deliberately delayed the distribution of Anulagnak-22 at
various polling stations and on account of inaction on his part, election
petitioner's supporters got confused and either did not vote or voted in favour
of the first respondent, an Indian National Congress candidate;
(iii)
that the first respondent put pressure on the election petitioner to withdraw
from the contest and on his refusal to do so, a rumour was spread by the first
respondent that the election petitioner had withdrawn from the election fray
and thus the first respondent used corrupt practice;
(iv) that
the first respondent got a fabricated 'Fatva' from Devband circulated among the
Muslim voters asking them to cast votes in his favour and thus the Muslim
voters were unduly influenced by the issuance of the aforesaid religious Fatva
- a corrupt practice;
(v) that
the Polling Officers at various polling stations did not seal Electronic Voting
Machines in presence of the election agent of the election petitioner and other
candidates and further before the commencement of counting the Returning
Officer did not get the seal of strong room certified from any of the polling
agents; and (vi) that the Electronic Voting Machines of various polling
stations were either changed or were used after the polling time was over,
showing misuse of the official machinery in support of the first respondent
and, thus, putting a question mark on the fairness of the election.
3.
The first respondent on being served with notice, instead of
filing a written statement, filed an application under Order VI Rules 16 and 17
and Order VII Rule 11 of the Code of Civil 3 Procedure, 1908 (in short `the
Code') read with Section 86 of the Act raising a preliminary objection to the
maintainability of the petition, inter-alia, on the ground that the petition
was lacking in material facts and particulars and was also defective for want
of requisite affidavit in support of allegations of corrupt practice and that
since it did not disclose any cause of action, it deserved to be dismissed at
the threshold. It was pleaded that on account of failure on the part of the
election petitioner to file an affidavit in support of his allegations, the
entire election petition was liable to be dismissed and allegations of corrupt
practices made in paragraphs 14, 17, 19, 20 and 21 as well as grounds D and E
of the election petition were liable to be struck off.
4.
On consideration of the rival stands, the High Court came to the
conclusion that the allegations of corrupt practices are entirely superfluous
in nature; the concise statement of material facts is completely lacking and
mandatory requirement of an affidavit in support of the allegations of corrupt
practices was also not complied with. Relying on the decision of this Court in
1 2000 (8) SCC 191 4 came to the conclusion that non-filing of affidavit in
support of the allegation of corrupt practices, is an incurable and fatal
defect and, therefore, the election petition was liable to be rejected on that
ground as well. Aggrieved, the election petitioner is before us in this appeal.
5.
In spite of service, the first respondent - the elected candidate
has not entered appearance. Therefore, we heard learned counsel appearing on
behalf of the election petitioner.
6.
It was submitted by learned counsel for the election petitioner
that the High Court has committed an error of law as well as of procedure in
entertaining first respondent's application and dismissing the election
petition at the threshold. It was contended that the question whether
"material facts", as contemplated in Section 83 of the Act, had been
stated or not, cannot be decided without providing an opportunity to the
election petitioner to prove his case upon trial. Learned counsel argued that
if an election petition is rejected at the threshold on account of
non-compliance with Section 83 of the Act, it would amount to reading into
Section 86 an additional ground for dismissal of the election petition which
cannot be 5 permitted in law. Relying on the Handbook for Returning Officers
issued by the Election Commission of India for the guidance of the Returning
Officers in the conduct of elections, learned counsel submitted that the
instructions so issued are binding on the Returning Officers and, therefore, having
obtained the specimen signatures of the appellant and his election agent, it
was obligatory on the part of the Returning Officer to circulate these specimen
signatures to all the Presiding Officers in the prescribed performa in terms of
Para 12 of Chapter VII of the said Handbook. It was contended that this
omission on the part of the Returning Officer had materially affected the
election result. However, the learned counsel fairly conceded that since the
election petitioner did not file the affidavit as required under proviso to
sub-section (1) of Section 83 of the Act, he was not pressing the ground
pertaining to corrupt practice. Therefore, the issue surviving for
consideration is only in relation to alleged violation of Section 100(1)(d)(iv)
of the Act.
7.
Before examining the merits of the issues raised on behalf of the
election petitioner with reference to the relevant statutory 6 provisions, it
would be appropriate to bear in mind the and Ors.2. Speaking for the
Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory
requirement of election law must be strictly observed and that the election
contest is not an action at law or a suit in equity, but is purely statutory
proceeding unknown to the common law and that Court possesses no common law
power. It is also well settled that the success of a candidate who has won at
an election should not be lightly interfered with and any petition seeking such
interference must strictly conform to the requirements of the law.
Nevertheless, it is also to be borne in mind that one of the essentials of the
election law is to safeguard the purity of the election process and, therefore,
the courts must zealously ensure that people do not get elected by flagrant
breaches of that law or by indulging in corrupt practices, as enumerated in the
Act.
8.
In this backdrop, we may now turn to the procedural provisions in
the Act insofar as they are relevant for our purpose:- 2 [1954] S.C.R. 892 7
"81. Presentation of petitions.--(1) An election petition calling in
question any election may be presented on one or more of the grounds specified
in sub-section (1) of section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five days from, but not
earlier than the date of election of the returned candidate, or if there are
more than one returned candidate at the election and the dates of their
election are different, the later of those two dates.
Explanation.--In
this sub-section, "elector" means a person who was entitled to vote
at the election to which the election petition relates, whether he has voted at
such election or not.
***** (3)
Every election petition shall be accompanied by as many copies thereof as there
are respondents mentioned in the petition, and every such copy shall be
attested by the petitioner under his own signature to be a true copy of the
petition.
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.
(2) Any
schedule or annexure to the petition shall also be signed by the petitioner and
verified in the same manner as the petition.
86. Trial
of election petitions.--(1) The High Court shall dismiss an election petition
which does not comply with the provisions of section 81 or section 82 or
section 117.
Explanation.--An
order of the High Court dismissing an election petition under this sub-section
shall be deemed to be an order made under clause (a) of section 98.
(2) As
soon as may be after an election petition has been presented to the High Court,
it shall be referred to the Judge or one of the Judges who has or have been
assigned by the Chief Justice for the trial of election petitions under
sub-section (2) of section 80A.
(3) Where
more election petitions than one are presented to the High Court in respect of
the same election, all of them shall be referred for trial to the same Judge
who may, in his discretion, try them separately or in one or more groups.
(4) Any
candidate not already a respondent shall, upon application made by him to the
High Court within fourteen days from the date of commencement of the trial and
subject to any order as to security for costs which may be made by the High
Court, be entitled to be joined as a respondent.
Explanation.--For
the purposes of this sub-section and of section 97, the trial of a petition
shall be deemed to commence on the date fixed for the respondents to appear
before the High Court and answer the claim or claims made in the petition.
(5) The
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 9 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.
(6) The
trial of an election petition shall, so far as is practicable consistently with
the interests of justice in respect of the trial, be continued from day to day
until its conclusion, unless the High Court finds the adjournment of the trial
beyond the following day to be necessary for reasons to be recorded.
(7) Every
election petition shall be tried as expeditiously as possible and endeavour
shall be made to conclude the trial within six months from the date on which
the election petition is presented to the High Court for trial.
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 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) The
provisions of the Indian Evidence Act, 1872 (1 of 1972), shall, subject to the
provisions of this Act, be deemed to apply in all respects to the trial of an
election petition."
9.
From the afore-quoted provisions, it would appear that Section 81
enables a petitioner to call in question any election on one or more of 1 the
grounds specified in sub-section (1) of Section 100 of the Act.
Section
83, the pivotal provision for the present case, requires that:
(a) the
election petition must contain a concise statement of "material
facts" on which petitioner relies and (b) he should also set forth
"full particulars" of any corrupt practices which the petitioner
alleges.
Proviso
to clause (c) of sub-section (1) of Section 83 also provides that where the
petitioner alleges any corrupt practice, the election 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. It is plain that the
requirement of disclosure of "material facts" and "full
particulars" as stipulated in the Section is mandatory. Section 86
mandates that where the election petition does not comply with the provisions
of Section 81 or Section 82 or Section 117 of the Act, the High Court should
dismiss the election petition. Section 87 which lays down the procedure
required to be followed by the High Court while trying an election petition,
requires that every election petition shall be tried, as nearly as may be, in
accordance with the procedure applicable under the Code to the trial of the
suits, subject of course to the provisions of the Act and of any requirement
made thereunder.
10.
It is evident that controversy in this appeal lies in a narrow
compass.
It
revolves around the ambit of Section 83 of the Act. The point for consideration
is whether the election petition lacked "material facts"
required
to be stated in the election petition in terms of Section 83(1) of the Act and
if so, could it be dismissed summarily without trial?
11.
As already noted, it is mandatory that all "material
facts" are set out in an election petition and it is also trite that if
material facts are not stated in the petition, the same is liable to be
dismissed on that ground alone. Therefore, the question is as to whether the
election petitioner had set out "material facts" in his petition?
12.
The phrase "material facts" has neither been defined in
the Act nor in the Code and, therefore, it has been understood by the courts in
general terms to mean the entire bundle of facts which would constitute a
complete cause of action. In other words, "material facts" are facts
upon which the plaintiff's cause of action or defendant's Ramaratan Bapu &
Ors.3). Broadly speaking, all primary or basic facts which are necessary either
to prove the cause of action by the plaintiff or defence by the defendant are
"material facts". Material 3 (2004) 7 SCC 181 1 facts are facts
which, if established, would give the petitioner the relief asked for. But
again, what 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.
13.
The requirement in an election petition as to the statement of
material facts and the consequences of lack of such disclosure with reference
to Sections 81, 83 and 86 of the Act came up for consideration before a
three-Judge Bench of this Court in Samant N. Balkrishna & Anr. Bench, M.
Hidayatullah, C.J., inter-alia, laid down that: (i) Section 83 of the Act is
mandatory and requires first a concise statement of material facts and then the
fullest possible particulars; (ii) omission of even a single material fact
leads to an incomplete cause of action and statement of claim becomes bad;
(iii) the function of particulars is to present in full a picture of the cause
of action and to make the opposite party understand the case he will have to
meet; (iv) material facts and particulars are distinct matters - material facts
will mention statements of fact and particulars will set out the names of
persons with date, time and place and (v) in stating the material facts it will
not 4 (1969) 3 SCC 238 1 do merely to quote the words of the Section because then
the efficacy of the material facts will be lost.
14.
At this juncture, in order to appreciate the real object and
purport of the phrase "material facts", particularly with reference
to election law, it would be appropriate to notice distinction between the
phrases "material facts" as appearing in clause (a) and
"particulars" as appearing in clause (b) of sub-section (1) of
Section 83. As stated above, "material facts" are primary or basic
facts which have to be pleaded by the petitioner to prove his cause of action
and by the defendant to prove his defence. "Particulars", on the
other hand, are details in support of the material facts, pleaded by the
parties. 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. Unlike "material
facts" which provide the basic foundation on which the entire edifice of
the election petition is built, "particulars" are to be stated to
ensure that opposite party is not taken by surprise.
15.
The distinction between "material facts" and
"particulars" and their requirement in an election petition was
succinctly brought out by this 1 C.K. Thakker, J., stated thus: (SCC p.631,
para 50) "50. There is distinction between facta probanda (the facts
required to be proved i.e. material facts) and facta probantia (the facts by
means of which they are proved i.e. particulars or evidence). It is settled law
that pleadings must contain only facta probanda and not facta probantia.
The
material facts on which the party relies for his claim are called facta
probanda and they must be stated in the pleadings. But the facts or facts by
means of which facta probanda (material facts) are proved and which are in the
nature of facta probantia (particulars or evidence) need not be set out in the
pleadings. They are not facts in issue, but only relevant facts required to be
proved at the trial in order to establish the fact in issue."
16.
Now, before examining the rival submissions in the light of the
afore- stated legal position, it would be expedient to deal with another
submission of learned counsel for the appellant that the High Court should not
have exercised its power either under Order VI Rule 16 or Order VII Rule 11 of
the Code to reject the election petition at the threshold. The argument is
two-fold viz. (i) that even if the election petition was liable to be dismissed
ultimately, it should have been dismissed only after affording an opportunity
to the election petitioner to adduce evidence in support of his allegation in
the petition and (ii) since Section 83 does not find a place in Section 86 of
the Act, 5 (2007) 3 SCC 617 1 rejection of petition at the threshold would
amount to reading into sub- section (1) of Section 86 an additional ground.
17.
In our opinion, both the contentions are misconceived and
untenable.
18.
Undoubtedly, by virtue of Section 87 of the Act, the provisions of
the Code apply to the trial of an election petition and, therefore, in the
absence of anything to the contrary in the Act, the court trying an election
petition can act in exercise of its power under the Code, including Order VI
Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is
to ensure that meaningless litigation, which is otherwise bound to prove
abortive, should not be permitted to occupy the judicial time of the courts. If
that is so in matters pertaining to ordinary civil litigation, it must apply
with greater vigour in election matters where the pendency of an election
petition is likely to inhibit the elected representative of the people in the
discharge of his public duties for which the Electorate have reposed confidence
in him. The submission, therefore, must fail. Coming to the second limb of the
argument viz., absence of Section 83 in Section 86 of the Act, which
specifically provides for dismissal of an election petition which does not
comply with certain provisions of the Act, in our view, the issue is no longer
res-integra. A similar plea was negatived by a 1 wherein speaking for the
Bench, A.N. Ray, J. (as His Lordship then was) said: (SCC p.221, para 23)
"23. Counsel on behalf of the respondent submitted that an election
petition could not be dismissed by reason of want of material facts because
Section 86 of the Act conferred power on the High Court to dismiss the election
petition which did not comply with the provisions of Section 81, or Section 82
or Section 117 of the Act. It was emphasised that Section 83 did not find place
in Section
86. Under
Section 87 of the Act 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, to the trial of suits. A suit which does not furnish
cause of action can be dismissed." Rajiv Gandhi7. Referring to earlier
pronouncements of this Court in Scindia8 wherein it was observed that the
omission of a single material fact would lead to incomplete cause of action and
that an election petition without the material facts is not an election
petition at all, the Bench held that all the facts which are essential to clothe
the petition with complete cause of action must be pleaded and omission of even
a single material fact would amount to disobedience of the 6 (1972) 1 SCC 214 7
1986 (Supp) SCC 315 8 (1977) 1 SCC 511 1 mandate of Section 83(1)(a) of the Act
and an election petition can be and must be dismissed if it suffers from any
such vice.
19.
We may now advert to the facts at hand to examine whether the
election petition suffered from the vice of non-disclosure of material facts as
stipulated in Section 83(1)(a) of the Act. As already stated the case of the
election petitioner is confined to the alleged violation of Section
100(1)(d)(iv). For the sake of ready reference, the said provision is extracted
below:
"100.
Grounds for declaring election to be void.--(1) Subject to the provisions of
sub-section (2) if the High Court is of opinion-- ***** (d) that the result of
the election, in so far as it concerns a returned candidate, has been
materially affected -- ***** (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."
20.
It is plain that in order to get an election declared as void
under the said provision, the election petitioner must aver that on account of
non-compliance with the provisions of the Constitution or of this Act or of any
rules or orders made under the Act, the result of the election, insofar as it
concerned the returned candidate, was materially 1 affected. As already stated,
in the present case, the allegation of the election petitioner is that the
Returning Officer failed to circulate the attested signatures of his election
agent to various polling stations and, therefore, failed to comply with para 12
of Chapter VII of the Handbook for Returning Officers. The pleadings in the
election petition, in relation to grounds (i) and (ii), extracted in para 2
above, were as under:
"11.
That due to aforesaid inaction of the Returning Officer the polling agent of
the petitioner was not permitted to function till 3.00 P.M. by which time more
than 80% polling was over. This inaction on the part of Returning Officer
materially affected the election as almost all other polling agents of the
petitioner working in other polling stations got confused and supporters of the
petitioner either returned back or voted for congress candidate.
12. That
the Returning Officer was duty bound to send required Praroop of the petitioner
and his agent's signature one day before the day of election which he did not
do. Due to his inaction of the Returning Officer the election of 13 Laxman
Chowk Legislative Assembly Constituency was materially affected."
21.
There is no quarrel with the proposition that the instructions
contained in the Handbook for the Returning Officers are issued by the Election
Commission in exercise of its statutory functions and are, therefore, binding
on the Returning Officers. They are obliged to follow them in letter and
spirit. But the question for consideration is whether the 1 afore-extracted
paragraphs of the election petition disclose material facts so as to constitute
a complete cause of action. In other words, the question is whether the alleged
omission on the part of the Returning Officer ipso facto "materially
affected" the election result. It goes without saying that the averments
in the said two paragraphs are to be read in conjunction with the preceding
paragraphs in the election petition. What is stated in the preceding paragraphs,
as can be noticed from grounds (i) and (ii) reproduced above, is that by the
time specimen signature of the polling agent were circulated 80% of the polling
was over and because of the absence of the polling agent the voters got
confused and voted in favour of the first respondent. In our opinion, to say
the least, the pleading is vague and does not spell out as to how the election
results were materially affected because of these two factors. These facts fall
short of being "material facts" as contemplated in Section 83(1)(a)
of the Act to constitute a complete cause of action in relation to allegation
under Section 100(1)(d)(iv) of the Act. It is not the case of the election
petitioner that in the absence of his election agent there was some malpractice
at the polling stations during the polling. It needs little reiteration that
for purpose of Section 100(1)(d)(iv), it was necessary for the election
petitioner to aver specifically in what manner the result of the election
insofar as it 2 concerned the first respondent, was materially affected due to
the said omission on the part of the Returning Officer. Unfortunately, such
averment is missing in the election petition. In our judgment, therefore, the
Election Tribunal/High Court was justified in coming to the conclusion that
statement of material facts in the election petition was completely lacking and
the petition was liable to be rejected at the threshold on that ground. We
have, therefore, no hesitation in upholding the view taken by the High Court.
22.
Consequently, this appeal, being devoid of any merit, fails and is
dismissed accordingly. Since the first respondent remained unrepresented, there
will be no order as to costs.
........................................J. (D.K. JAIN)
........................................J. (H.L. DATTU)
NEW DELHI;
Back
