Civil Appeal Election No4030 of 1987
From the Judgment and Order dated 131187 of the Kerala High Court in Election Petition No 2 of 1987
PS Poti and TT Kunhikannan for the Appellant
961 Dr YS Chitale AS Nambiar Dileep Pillai MA Firoz and Aseem Mahrotra for the Respondents
The Judgment of the Court was delivered by DUTT J
This appeal under section 116 A of the Repre sentation of the People Act 1951 hereinafter referred to as the Act  is directed against the judgment of the Kerala High Court dismissing the election petition of the appel lant
The appellant is a voter in the Mala constituency of the Kerala Legislative Assembly
The election of the members of the Assembly was held on March 23 1987 and the first re spondent who was then the sitting Chief Minister of the State of Kerala was declared elected from Mala constituen cy
The appellant challenged the election of the first respondent to the Kerala Legislative Assembly on the ground of various corrupt practices alleged to have been committed by the first respondent
In paragraphs 5i and 5ii of the election petition the corrupt practice that was alleged by the appellant was to the effect that the second respondent who was a candidate for the election published a notice wherein it was declared that the second respondent was withdrawing from the contest and stated inter alia that it was to highlight the grievances of his community namely the Kudumbi Samudayam which is a backward community that he had decided to contest the election and that one of the demands of the community was that it should be included in the list of Scheduled Castes
Further the second respondent stated in the notice that the Kerala Government under the leadership of the first respondent had decided to give favourable consideration in regard to his community s demand for inclusion in the list of Scheduled Castes
Accordingly the second respondent declared in the notice that for ob taining their rights it had become necessary that the first respondent should win in the election and for that purpose he was withdrawing his candidature offering full support to the first respondent
It was alleged that the second re spondent published the notice at the instigation and with the assistance and initiative and at the cost of the first respondent and his supporters
Such acts constituted corrupt practice within the meaning of section 123 of the Act
In paragraph 5xvi it is alleged that the first re spondent also committed corrupt practice in the course of his election work by asking Government servants including Shri PM Shabul Hameed Teacher 962 Government Upper Primary School Kaduppassery to lead processions in support of his candidature in the constituen cy
It was submitted by the appellant that he was prepared to prove the allegation by examining the said persons
A photograph of a procession was filed
In paragraph 5xi of the election petition the appel lant inter alia stated as follows 5xi       
Besides at the instigation of the first re spondent a video cassette called Malayude Purogathi has been used in the constituency
The persons who speak are one Shri Jose P George Government Pleader Kerala High Court 2
Shri Thomas Thottappally Veterinary Doc tor Veterinary Polyclinic Valiyaparambu
This is also a corrupt practice
The video cassette is produced herewith in a sealed cover
 The first respondent opposed the election petition by filing a written statement denying the allegations of cor rupt practices
It was submitted by him that as the copies of the said notice photograph and video cassette were not supplied to the first respondent along with the copy of the election petition the election petition was liable to be dismissed in limine under section 861 for non compliance with section 813 of the Act
The High Court came to the findings that the allegations in the election petition would really show that the said documents formed integral part of the election petition and therefore it was really necessary to serve copies of the same on the first respondent and overruled the contention of the appellant that as he had filed the documents and pro duced the video cassette in Court the first respondent could very well take copies of the same and defend his case
The High Court took the view that non furnishing to the first respondent copies of the documents along with a copy of the election petition was non compliance with section 813 and as such the election petition was liable to be dismissed under section 861 of the Act
In that view of the matter the High Court dismissed the election petition
Hence this appeal
Section 81 of the Act provides as follows 81
Presentation of petitions
1 An elec tion petition calling in question any election may be presented on one or more of the grounds specified in sub section 1 of section 963 100 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
2 Omitted by Act 47 of 1966 3 Every election petition shall be accompa nied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the peti tioner under his own signature to be a true copy of the petition
 We are concerned with section 813 which enjoins that 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 peti tioner under his own signature to be a true copy of the petition
Section 813 however does not provide for giving of copies of the documents either referred to in the election petition or filed in the proceedings
We may now refer to section 861 of the Act which reads as follows 861
The High Court shall dismiss an elec tion petition which does not comply with the provisions of section 81 or section 82 or section 117 Section 861 therefore is a mandate on the court to dismiss an election petition if there be a non compliance with the provision of section 813
In other words both section 813 and section 861 are mandatory in nature and if there be any non compliance with the mandatory provision of section 813 the court will be bound to dismiss the election petition
Before considering whether a copy of the document re ferred to in the election petition or filed in the proceed ings should be furnished to the elected candidate whose election is under challenge along with a copy of the elec tion petition we may refer to section 83 of the Act provid ing as to the contents of an election petition
Section 83 provides as follows 964 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 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 allega tion of such corrupt practice and the particu lars 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
 It is apparent from clauses a and b of section 83 that an election petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice
These two requirements are also manda tory in nature
So whenever there is an allegation of corrupt practice the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner
As has been held in Satya Narain vs Dhuja Ram   the right to challenge an election is not a common law right but a special right as conferred by the Act
The provision for setting aside the election on the grounds mentioned in section 100 of the Act including the ground of corrupt practice has been made for the purpose of maintain ing purity of elections
An election is the democratic method for selecting the representatives of the people in Parliament or in the Legislative Assembly
When a candidate gets himself elected by adopting or committing any corrupt practice his election must be set aside on proof of such corrupt practice
At the same time the proce 965 dure prescribed by the Act for challenging an election must be strictly followed
So if there be any deviation from or non compliance with the provision of section 813 the court will have no other alternative than to dismiss the election petition
It has been already noticed that the High Court dis missed the election petition as the appellant has not fur nished to the first respondent copies of the notice photo graph and the video cassette referred to above along with a copy of the election petition
So far as the copies of the notice and the photograph are concerned we do not think that the High Court was justified in holding that these should have also been furnished to the first respondent along with the copy of the election petition
Dr Chitale learned Counsel appearing on behalf of the first respondent also has not urged that the copies of these two documents should have been served upon the first respondent
What has however been vehemently urged on behalf of the first re spondent is that he should have been served along with the election a copy of the video cassette
This contention will be considered presently
We have already referred to section 83 relating to the contents of an election petition
The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice
The material facts or particulars relating to any corrupt prac tice may be contained in a document and the election peti tioner without pleading the material facts or particulars of corrupt practice may refer to the document
When such a reference is made in the election petition a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition the document becomes incorporated in the election petition by reference
In other words it forms an integral part of the election petition
Section 813 pro vides for giving a true copy of the election petition
When a document forms an integral part of the election petition and a copy of such document is not furnished to the respond ent along with a copy of the election petition the copy of the election petition will not be a true copy within the meaning of section 813 and as such the court has to dismiss the election petition under section 861 for non compliance with section 813
On the other hand if the contents of the document in question are pleaded in the election petition the document does not form an integral part of the election petition
In such a case a copy of the document need not be served on the respondent and that will not be non compliance with the provision of section 813
The document 966 may be relied upon as an evidence in the proceedings
In other words when the document does not form an integral part of the election petition but has been either referred to in the petition or filed in the proceedings as evidence of any fact a copy of such a document need not be served on the respondent along with a copy of the election petition
There may be another situation when a copy of the docu ment need not be served on the respondent along with the election petition
When a document has been filed in the proceedings but is not referred to in the petition either directly or indirectly a copy of such document need not be served on the respondent
What section 813 enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate
When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the elec tion petition
Copy of such document must be served on the respondents
Keeping in view the above principles let us consider whether the video cassette as mentioned in paragraph 5xi in the election petition forms an integral part of the election petition
It is not disputed that a copy of the video cassette was not served on the first respondent along with the copy of the election petition
Indeed the same was submitted by the appellant in a sealed cover with an appli cation praying for keeping the video cassettee in the sealed cover till the stage of examination of witnesses
It is therefore apparent that not only the copy of the video cassette was not served on the first respondent but also the appellant had no intention of serving a copy of the same on the first respondent
It is urged by Mr Poti learned Counsel appearing on behalf of the appellant that the video cassette is only an evidence of the fact stated in paragraph 5xi of the elec tion petition relevant portion of which has been extracted above
It has been alleged in paragraph 5xi that at the instigation of the first respondent a video cassette called Malayude Purogathi has been used in the constituency
The expression Malayude Purogathi means progress of Mala which is the constituency in question
Further it has been alleged that the persons whose speeches have been recorded in the video cassette regarding progress of Mala are two Government officers named in paragraph 5xi and that the cassette has been used in the constituency at the 967 instigation of the first respondent
This has been averred as a corrupt practice
It is also mentioned in the same paragraph that the video cassette is produced with the election petition in a sealed cover
It is not disputed that by corrupt practice as referred to in paragraph 5xi of the election petition the appellant is referring to the corrupt practice within the meaning of section 1237 of the Act
Section 123 enumerates the different corrupt practices for the purposes of the Act
One of the corrupt practices as contained in section 1237 is the obtaining or procuring or abetting or attempting to obtain or procure by a candi date 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 classes as mentioned in clauses a to g of the section
The signifi cant ingredient of corrupt practice as mentioned in section 1237 is that the assistance which is obtained or procured from a Government servant of the classes mentioned in clauses a to g must be for the furtherance of the pros pect of the election of the candidate who or on whose behalf such assistance has been obtained or procured
It is not disputed that the two Government servants mentioned in paragraph 5xi of the election petition whose speeches have been recorded in the video cassette are Government servants within the meaning of section 1237
The speeches of the two Government servants relating to Malayude Purogathi that is the progress of Mala sim pliciter will not constitute a corrupt practice within the meaning of section 1237
In order to be a corrupt practice within the meaning of section 1237 the speeches of the said Government servants as recorded in the video cassette and alleged to have been used in the constituency at the instigation of the first respondent must be with a view to obtaining or procuring or abetting or attempting to obtain or procure the assistance for the furtherance of the pros pects of the first respondent s election
It is urged by the learned Counsel for the appellant that as no such allegation has been made in paragraph 5xi the allegations in that paragraph do not constitute a corrupt practice within the meaning of section 1237 and accordingly the video cas sette does not form an integral part of that paragraph
We are unable to accept the contention
It is true that there is no allegation in paragraph 5xi that the video cassette was used by the first respondent for the purpose of any assistance for the furtherance of the prospects of his election
But in our opinion it is apparent that 968 such an allegation is implied in the paragraph
After alleg ing that the video cassette was used in the constituency at the instigation of the first respondent it is alleged that the same constituted a corrupt practice which points to the only fact that the video cassette containing the speeches of the Government servants was used for the purpose of some assistance for the furtherance of the prospects of the election of the first respondent
It is implied that the video cassette is referred to in paragraph 5xi in regard to the alleged assistance for the furtherance of the pros pects of the election of the first respondent and accord ingly the contents of the cassette are incorporated in that paragraph by reference
In other words the cassette forms an integral part of paragraph 5xi
In this connection we may refer to Item No 1 of the List of Documents which reads as follows 1
Video Cassette by Kala Audio  Video Kallettumkara Tricur District titled Mala yude Purogathi prepared at the instance of the first respondent for election propaganda as stated in paragraph 5xi of the election petition
 It is clear from Item No 1 of the List of Documents that it is the specific case of the appellant that the video cassette was prepared at the instance of the first respond ent for election propaganda as stated in paragraph 5xi of the election petition
Whether it was so stated in Item No 1 of the List of Documents or not it is as stated already apparent on the face of the allegation in paragraph 5xi that it was used by the first respondent by way of assist ance in furtherance of the prospects of his election and so the video cassette formed an integral part of paragraph 5xi
Unless a copy of the video cassette was given to the first respondent he would not know how the speeches of the said Government servants could assist the furtherance of the prospects of his election and would not be in a position to deal with the allegations made in paragraph 5xi
The copy of the election petition which was served on the first respondent without a copy of the video cassette was not therefore a true copy of the election petition within the meaning of section 813 of the Act
Much reliance has been placed on behalf of the appellant on a decision of this Court in Sahodrabai Rai vs Ram Singh Aharwar  In that case the appellant filed an election petition challenging the election of the first respondent on four grounds one of which was corrupt prac tice inasmuch as the first respondent had appealed to reli gion through a pamphlet marked Annexure A
In the 969 body of the election petition a translation in English of the Hindi pamphlet was incorporated
The original pamphlet was attached to the election petition and was marked Annex ure A
The election petitioner thereafter stated in the petition that the pamphlet formed part of the petition
The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and therefore the election peti tion was liable to be dismissed under section 86 of the Act
The High Court accepted the objection and dismissed the election petition
On an appeal to this Court by the appel lant this Court set aside the judgment of the High Court holding that the pamphlet must be treated as a document and not as a part of the election petition in so far as the averments were concerned
The decision in Sahodrabai s case does not in our opinion lend any assistance to the contention of the appel lant that the video cassette is only evidence and does not form part of the election petition
In that case the elec tion petition reproduced the whole of the pamphlet and accordingly it was held that it was only an evidence and not a part of the election petition
What has been stressed in that case is that each and every document does not form part of the election petition
Moreover the Court was considering the scope of section 832 of the Act before it was amended
We are unable to accept the contention made on behalf of the appellant that a document in no circum stances can form an integral part of the election petition
As has been noticed already the phamplet in that case was fully reproduced in the election petition and therefore it was merely an evidence and did not form a part of the elec tion petition
In Thakur Virendra Singh vs Vimal Kumar  the question was whether a leaflet a copy of which was Annexure A to the election petition and referred to in paragraph 13 thereof constituted a part of the election petition and accordingly should have been served on the elected candidate
This Court overruled the contention of the elected candidate that the petition was liable to be dismissed as the copy of the petition meant to be served on the appellant was not accompanied by a copy of Annexure A on the ground that the allegation of corrupt practice and particulars thereof as given in paragraph 13 of the elec tion petition were sufficiently clear and precise
This decision is therefore of no help to the contention of the appellant that the video cassette is not a part of the election petition
The most important case for our purpose is the decision of this 970 Court in M Karunanidhi vs HV Hande In that case in paragraph 18b of the election petition it was alleged as follows 18b
The first Respondent erected fancy banners throughout the constituency and the number of such banners is about 50
A photo graph of one such banner is filed herewith
The cost of each such banner will be not less than Rs 1000
The expenditure involved in erecting these fifty banners is about Rs50000
It is submitted that the first Respondent has incurred the above said expend iture which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 773 of the Act thus amounting to a corrupt practice under Section 1236 of the Act
 Admittedly a copy of the photograph as referred to in paragraph 18b was not furnished to the appellant along with a copy of the election petition
This Court took the view that the averment contained in paragraph 18b would be incomplete without a copy of the photograph being supplied with a copy of the election petition
The reason being that it was not possible to conceive of the dimension of the large fancy banner unless one had a look at the photograph
1n that view of the matter it was held by this Court that the photograph formed an integral part of the petition and a copy of it should have been served along with the election petition
Accordingly this Court reversed the judgment of the High Court in so far as it held that the photograph of the fancy banner adverted to in paragraph 18b could not be treated to be an integral part of the election petition but was merely a piece of evidence  as to the nature and type of fancy banner erected by the appellant and therefore fail ure to supply a copy of the photograph to the appellant did not amount to a violation of the provision of sub section 3 of section 81 of the Act
The decision in Karunanidhi s case fully supports the view which we take namely the video cassette formed an integral part of the election petition because without a copy of the video cassette the first respondent was not in a position to know whether  the video cassette recording the speeches of the two Government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his elec tion
Karunanidhi s case was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey vs Baidyanath Yadav 1984 2 SCR 278
971 Mr Poti has however urged that if the averments in paragraph 5xi of the election petition are full and com plete or in other words if they do not give particulars of the corrupt practice in that case the said averments may be struck out under the provisions of Order VI Rule 16 of the Code of Civil Procedure but the entire election petition cannot be dismissed
It has already been noticed that under clauses a and b of section 831 of the Act an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice
The material facts and the full particulars of corrupt practice will constitute cause of action for the election petition
If the material facts are not supplied or full particulars of corrupt practice are not given in the election petition as a consequence of which the election petition does not disclose any cause of action it is liable to be dismissed under the provision of Order VII Rule 11a of the Code of Civil Procedure
See Azhar Hussain vs Rajiv Gandhi  Apart from the striking out the whole of the election petition when it does not disclose a cause of action the court can strike out any statement which is irrelevant scandalous or has nothing to do with the cause of action under the provision of Order VI Rule 16 of the Code of Civil Procedure
It is submitted by Mr Poti that if the averments in paragraph 5xi of the election petition are irrelevant or do not disclose any cause of action at the most the said paragraph can be struck out by the court under the provision of Order VI Rule 16 of the Code of Civil Procedure
We are afraid we are unable to accept the con tention
We are not concerned with whether paragraph 5xi can be struck out by the court under the provision of Order VI Rule 16 of the Code of Civil Procedure as not disclosing any cause of action but really we are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of the video cassette is a true copy of the election peti tion or not within the meaning of section 813 of the Act
We have come to the conclusion that the appellant has not served on the first respondent a true copy of the election petition inasmuch as admittedly a copy of the video cas sette which forms an integral part of the election petition was not served along with the election petition
There is therefore no substance in the contention which is rejected
Mr Poti has drawn our attention to the observations made by this Court in Shri Udhav Singh vs Madhay Rao Scin dia 1977 1 SCC 511 which reads as follows 972 Like the Code of Civil Procedure this sec tion 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 defi ciency 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 allega tions 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
 On the basis of the above observations it is submitted that if paragraph 5xi of the election petition suffers from a deficiency of material particulars the court has a discretion to allow the appellant to supply the required particulars even after the expiry of limitation
The above observations have been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which as noticed already relate to the ques tion as to whether the video cassette is an integral part of the election petition and whether non furnishing of a copy of the video cassette to the first respondent along with a copy of election petition is non compliance with the mandatory provision of section 813 and as such liable to be dismissed under section 861 of the Act
The question of exercise of discretion by the court in permitting the appel lant to supply the particulars does not arise at all
Lastly the decision of this Court in A Madan Mohan vs Kalavakunta Chandrasekhara has been relied upon by the learned Counsel for the appellant
We fail to understand how this case is of any assistance to the appel lant for in this case also this Court once more approved of the decision in Karunanidhi s case
No other point has been urged by either party in this appeal
In view of the discussion made above we affirm the judgment of the High Court dismissing the election petition of the appellant on the 973 ground that as the copy of the video cassette was not served on the first respondent along with a copy of the election petition it was noncompliance with the provision of section 813 of the Act
The appeal is accordingly dismissed
There will however be no order as to costs
Y Lal Appeal dismissed


Summary:
These two Writ Petitions have been filed by the widows of the pensioners viz Smt
Bhagwati and Smt
Sharda Swamy as they have been refused family pension after the demise of their husbands
Bhagwanti is the widow of an Ex Subedar of the Indian Army who retired after serving for 18 years on 381947
He was given pension
In 1955 his wife died and in 1965 he married the petitioner
The Subedar died in Septem ber 1985 in an accident
The Petitioner Smt
Bhagwanti who has two minor children applied for family pension but the same was not granted to her
The other Petitioner Smt
Sharda Swamy is the wife of the retired railway employee
Her husband took voluntary retirement at the age of 44 years in November 1979
The Petitioner married her deceased husband in 1981 and has a daughter born to her in 1984
Petitioner s husband died in 1986
The petitioner applied for a family pension but by a letter dated 381988 she was informed that her application has been rejected
It was stated therein that it has not been found possible to include wife of a Government Servant who had married after retirement in the definition of   family for grant of family pension
In the counter affidavits filed on behalf of the Union the stand taken in the first case is that the pension has been refused as the marriage was after retirement and in the other case the Union relied on the definition of family occurring in Rule 5414b of the Central Civil Services Pension Rules 1972 which speaks of marriage before re tirement
1011 The common stand taken thus by the Union is that family pension would not be admissible to spouses who get married after the retirement of the Government servant nor to chil dren born after retirement
Allowing the Writ Petitions this Court HELD Pension is payable as pointed out in several Judgments of this Court on the consideration of past serv ice rendered by the Government servant
Payability of the family pension is basically on the self same consideration
Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age distinction between marriage during service and mar riage after retirement appears to be indeed arbitrary
101411 1015B Admittedly the definition of family as it stands after amendment excludes the spouse of the Government serv ant who has got married to such Government servant after hisher retirement and the children born after retirement also stand excluded
1014F In most cases marriage after retirement is done to provide protection secure companionship and to secure support in old age
1015C The consideration upon which pension proper is admissi ble or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of family by keeping the postretiral spouse out of it
1015D The two limitations incorporated in the definition of family suffer from the vice of arbitrariness and discrimi nation and cannot be supported by nexus or reasonable clas sification
1016D The words provided the marriage took place before retirement of the Government servant in clause i and but shall not include son or daughter born after retirement in clause ii are thus ultra vires Article 14 of the Constitu tion and cannot be sustained
1016E DS Nakara  Ors
vs Union of India   Deoki Nanaan Prasad vs State of Bihar  Ors 1971 Suppl
SCR 634 Smt
Poonamal vs Union of India  Ors   referred to