WP(C) 3083/2010 BEFORE THE HON’BLE MR JUSTICE IA ANSARI The petitioner herein contested the election for membership of No. 2 Kalapani Zi lla Parishad Constituency from No. 1 Mankachar Constituency, he being a candidat e nominated by Indian National Congress. He was, on 29-01-2008, declared elected by defeating his nearest rival candidate, who is respondent No. 1 herein, by a margin of 85 votes, the respondent No. 1 having been nominated by All India Unit ed Democratic Front. The counting, in question, took place on 29-01-2008 and it was on that very day that the result was, as indicated hereinbefore, declared an nouncing the petitioner herein as the returned candidate. Besides the petitioner and the respondent No. 1 herein, there were three more candidates in the electi on, wherein altogether 33,244 votes were polled. 2. By way of an election petition, made under Section 129 of the Assam Panc hayat Act, 1994, read with the provisions of the Representation of the People Ac t, 1951, the respondent No. 1 herein challenged the validity of the result of th e said election, the grounds of challenge, in the election petition, being that the result of the election had been materially affected by improper counting of votes, cancellation of valid votes, acceptance of unsigned ballot papers in favo ur of the returned candidates, illegal rejection of postal ballots, votes missin g from ballot boxes, excess ballots discovered from the ballot boxes during the counting and illegal counting by unauthorized persons. It was also the case of t he election petitioner-respondent No. 1 herein that aggrieved by the irregularit ies and illegalities committed during the counting process, he had tried to subm it a representation, in writing, with the request for recounting, to the returni ng officer, but the returning officer was not available and when he could be fou nd by the election petitioner (i.e., the respondent No. 1), in the local circuit house, the returning officer was with the local Member of the Legislative Assem bly and access to him was denied to the election petitioner by the security pers onnel, whereupon the election petitioner went to the residence of the Assistant Returning Officer and submitted his representation requesting for recounting. Th ough the Assistant Returning Officer received with great reluctance, the said re presentation, no action was ever taken on the said representation made by the el ection petitioner. 3. By his election petition, the election petitioner had sought for the fol lowing reliefs: (a) an order declaring the election of returning candidate of No. 2 Kalapani Z ila Parishad Constituency has been materially affected by improper counting, imp roper acceptance of void votes, improper rejection of valid vote, improper cance llation of valid votes; (b) an order directing the respondent Nos. 2, 3 & 4 for recounting the entire vo tes of No. 2 Kalapani Zila Parishad Constituency by fresh enquiry as to validity , invalidity of the votes in favour of the petitioner and respondent No. 1, afte r fresh enquiry of entire cancelled and rejected vote and fresh scrutiny as the votes found missing in the ballot box and vote found excess in ballot box. (c) an order from the Tribunal to declare the petitioner or the respondent NO. 1 to be elected on the basis of fresh counting result. 4. The present writ petitioner, as elected candidate, resisted the electio n petition by contending, inter alia, that the election petition was itself not maintainable inasmuch as the election petition did not disclose cause of action and that no case for either recounting or declaring the result of the election i llegal and/or invalid, could be made out inasmuch as the counting, according to the present petitioner, had been conducted in accordance with the requirements o f law and the result of the election had been validly declared. 5. The learned District Judge framed the following issues for determination : 1. Whether the election petition is maintainable in law in the present form and manner? 2. Whether the election petition is bad for non-joinder of all the contesting ca ndidates and bad for misjoinder of necessary parties? 3. Whether the allegations and grounds made in the petition amounts to challenge the election of respondent No. 1? 4. Whether this Tribunal has got jurisdiction to try this Election Petition? 5. Whether the petition is entitled for an order of recounting of the votes poll ed? 6. Whether the petitioner is entitled to any relief/reliefs as prayed for? 6. Following the framing of the issues, as indicated above, the election pe titioner (i.e. the respondent No. 1) as well as the elected candidate (i.e., the writ petitioner herein) adduced evidence, the election petitioner having examin ed himself and three other persons as his witnesses and the present writ petitio ner, apart from examining two witnesses, in support of his case, examined himsel f as witness. 7. The learned Court below answered all the issues in favour of the electio n petitioner. While dealing with the issue No. 6, the learned Court below direct ed recounting of the votes. An order was accordingly made on 07-05-2010. Aggriev ed by the order, dated 07-05-2010, whereby the learned District Judge directed r ecounting of the votes, this writ petition has been filed, under Article 226/227 of the Constitution of India, seeking to get set aside and quashed the order, d ated 07-05-2010, aforementioned. 8. I have heard Mr. AB Choudhury, learned Senior counsel, assisted by Mr. J Rahman, learned counsel, for the petitioner, and Mr. D Saikia, learned counsel for the respondent No. 1. 9. While considering the present writ petition, it needs to be borne in min d that this writ petition is not, and cannot be treated be, an appeal against th e order, dated 07-05-2010, whereby a direction to hold recounting has been given . In order, therefore, to maintain this writ petition, the writ petitioner has t he onus to show that the findings, reached by the learned Court below, are perve rse in the sense that the same have been reached without any evidence being pres ent in support of such findings and/or that the findings are wholly against the evidence on record. This apart, the petitioner may also challenge the order, imp ugned in the writ petition, on the ground that the election petition itself was not maintainable in the sense that it did not disclose the material facts giving rise to cause of action and/or that the order directing recounting is not in ac cordance with law. 10. Appearing on behalf of the writ petitioner, Mr. Choudhury, learned Senio r counsel, contends that the election petition did not contain any specific stat ement giving material facts, which could justify a direction for holding of reco unting. 11. Considering the fact that the writ petitioner contends that the election petition did not disclose material facts giving rise to the cause of action, it is necessary to determine as to what a material fact means, what is material pa rticular and what constitutes cause of action? WHAT IS CAUSE OF ACTION: 12. Coming to the question as to what ’cause of action’ means, it may be poi nted out that ’cause of action’ implies a right to sue. Cause of action is not d efined in any statute. It has, however, been judicially interpreted, inter alia, to mean every fact, which would be necessary for the plaintiff to prove, if tra versed, in order to support his right to the judgment of the Court. Thus, the ma terial facts, which are imperative for the suitor to allege and prove, constitut e the cause of action. Negatively put, it would mean that everything, which, if not proved, gives the defendant an immediate right to judgment, would form part of cause of action. [Kusum Ingots and Alloys Ltd. Vs. Union of India, reported i n (2004) 6 SCC 254)]. 13. The ’cause of action’ has no relation whatever to the defence, which may be set up by the defendant, nor does it depend upon the character of the relief s prayed for by the plaintiff. It refers entirely to the grounds set forth in th e plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. [Chand Kour V s. Partap Singh, reported in (1887-88) 15 JA 1566]. 14. What becomes transparent from the above discussion is that the expressi on ’cause of action’ means a bundle of facts, which, if traversed, a plaintiff m ust prove to entitle him to receive a judgment in his favour. The cause of actio n bears no relation to the defence, which may be set up by the defendant, nor do es it depend upon the character of the relief (s) sought for. The cause of actio n is nothing, but the media upon which the plaintiff or the petitioner seeks the Court to arrive at a conclusion in his favour. For determining, therefore, the question as to whether a plaint or election petition discloses a ’cause of actio n’, the Court must take into account all the facts pleaded in support of the cau se of action without, however, embarking upon an enquiry as to the correctness o r otherwise of the facts pleaded. MEANING OF MATERIAL FACT : 15. Since an election petition must contain a concise statement of material facts on which an election petitioner relies in order to get the election of the returned candidate declared void, one has to necessarily understand, in correct perspective, what the expression, ’material fact’, means and how can one distin guish ’material fact’ from ’material particular’ ? 16. In the case at hand, as the election petitioner does not challenge, admi ttedly, the election of the returned candidate on the ground of ’corrupt practic e’, we are more concerned with the meaning of the expression ’material fact’ tha n the meaning of the expression, material particular, though the distinction bet ween the two is, at times, difficult to notice. 17. Let me point out as to what the expression, ’material fact’, convey. In this regard, it may be noted that the expression, ’material fact’, has been exp lained in many of the decisions in the realm of ’corrupt practice’. However, the meaning of the expression, ’material fact’, does not depend upon the question a s to whether the result of an election is challenged on the ground of ’corrupt p ractice’ or on some other grounds as permitted in the RP Act, 1951. In other wor ds, the meaning of the expression, ’material fact’, remains the same irrespectiv e of the fact as to whether one faces challenge to the result of an election on the ground of ’corrupt practice’ or on any other statutory ground. 18. In Hari Shanker Jain Vs. Sonia Gandhi, reported in (2001) 8 SCC 233, th e Supreme Court has pointed out that by a series of decisions of the Court, it i s well settled that the ’material facts’ required to be stated are those facts, which can be considered as ’materials’ supporting the allegations made. In other words, they must be such facts as would afford a ’basis’ for the allegations ma de in the petition and would constitute the ’cause of action’ as is understood i n the Code. In short, thus, ’material facts’ mean those facts, which support the allegations made by an election petitioner, or those basic facts on which rest the allegations made in the election petition. 19. The Supreme Court has also pointed out, in Sonia Gandhi’s case (supra), that omission of a single material fact leads to an incomplete cause of action and t he statement of claim becomes bad. The function of the party is to present as fu ll a picture of the cause of action with such further information, in detail, as to make the opposite party understand the case he will have to meet. (See also Samant N. Balkrishna Vs. George Fernandez, reported in 1969 (2) SCC 433, and Jit endra Bahadur Singh Vs. Krishna Behari, reported in 1969 (3) SCC 283 ). 20. All the primary facts, which must be proved, at the trial, by a party, to establish the existence of a cause of action or his defence, are ’material fa cts’. [See Udhav Singh Vs. Madhav Rao Scindia, reported in (1977) 1 SCC 511]. 21. In V. S. Achuthanandan Vs. P. J. Francis and Anr. , reported in (1999) 3 SCC 737, the Supreme Court has held, on a conspectus of a series of its decisi ons, that ’material facts’ are such preliminary facts, which must be proved, at the trial, by a party to establish existence of a ’cause of action’ and failure to plead ’material facts’ is fatal to the election petition. 22. Whether in an election petition, a particular fact is material or not, and as such, required to be pleaded or not is a question, which depends on the n ature of the charge levelled, the ground relied upon and the special circumstanc es of the case. In short, all those facts, which are essential to clothe the pet itioner with a complete ’cause of action’, are ’material facts’, which must be p leaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83 (1) (a ). (See Azhar Hussain Vs. Rajiv Gandhi (AIR 1986 SC 1253 ). 23. The Supreme Court has further pointed out, in Azhar Hussain Vs. Rajiv G andhi (AIR 1986 SC 1253, that all the primary facts, which must be proved by a p arty to establish a ’cause of action’ or his ’defence’, are ’material facts’. MATERIAL PARTICULAR : 24. One may also point out that ’particulars’, on the other hand, as laid d own in Azhar Hussain (supra), are \the details of the case set up by the party\. ’Material particulars’ would, therefore, mean all the details, which are necess ary to amplify, refine and embellish the ’material facts’ already pleaded in the petition in compliance with the requirements of clause (a) of Section 83 (1) of the RP Act, 1951, particulars serve the purpose of giving finishing touches to the basic contours of a picture already drawn, to make it full, more detailed an d more informative. DISTINCTION BETWEEN MATERIAL FACT AND MATERIAL PARTICULAR : 25. The distinction between ’material facts’ and ’material particulars’ was brought out by Scott, L. J. in Bruce Vs. Odhams Press Ltd. (1936) 1 KB 697, in t he following passage: \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 formulati ng a complete cause of action; and if anyone \material\ statement is omitted, th e statement of claim is bad; it is \demurrable\ in the old phraseology, and in t he new is liable to be \struck out\ under R. S. C. Order XXV, Rule 4 (see Philip ps v. Philipps ( (1878) 4 QBD 127)); or \a further and better statement of claim \ may be ordered under Rule 7. The function of \particulars\ under Rule 6 is qui te different. They are not to be used in order to fill material gaps in a demurr able statement of claim - gaps which ought to have been filled by appropriate st atements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defend ant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial\. (Emphasis is added) 26. The dictum of Scott, L. J. , in Bruce’s case (supra), has been quoted w ith approval by the Supreme Court in Samant N. Balkrishna Vs. George Fernandez, reported in (1969) 3 SCC 238, and, having approved the aforesaid dictum, the Sup reme Court has observed: \section 83 requires that the petition must contain a concise statement of the m aterial facts on which the petitioner relies and the fullest possible particular of the corrupt practice alleged. ’material facts’ and ’particulars’ may overlap but the word ’material’ shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The function of the particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet. \ 27. In short, thus, the word ’material’ means necessary for the purpose of formulating a complete ’cause of action’; and even if one ’material’ statement i s omitted, the statement of claim becomes bad; whereas the purpose of \material particulars\ is in the context of the need to give the opponent sufficient detai ls of the charge set up against him and to give him a reasonable opportunity to effectively respond. WHAT IS THE ’test’ WHETHER A PLEADING STATES ’material facts’ OR NOT ? 28. Succinctly explaining the expression, ’material facts’, the Supreme Cour t has observed, in Azhar Hussain’s case (supra), that ’material facts’ are facts , which, if established, would give the petitioner the relief asked for. The ’te st’ required to be answered is, points out the Supreme Court, in Azhar Hussain ( supra), whether the court could have given a ’direct verdict’ in favour of the e lection petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. The releva nt observations, made in Azhar Hussain (supra), read as under: \14. Before we deal with these grounds seriatim, we consider it appropriate to r estate the settled position of law as it emerges from the numerous decisions of this Court, which have been cited before us in regard to the question as to what exactly is the content of the expression \material facts and particulars\, whic h the election petitioner shall incorporate in his petition by virtue of Section 83 (1) of the Act. (1) What are material facts and particulars? Material facts are facts, which, if established, would give the petitioner the relief asked for . The test required to be answered is whether the court could have given a direc t verdict in. favour of the election petitioner in case the returned candidate h ad not appeared to oppose the election petition on the basis of the facts pleade d in the petition. (2) * * * * * * (3) * * * * * * (4) * * * * * * (5) * * * * * * (6) * * * * * *. \ [emphasis is added] 29. From the above observations, made in Azhar Hussain (supra), what becomes cle ar is that the ’material facts’ are those facts, which, if established, would gi ve the petitioner the relief asked for. The test required to be answered is whet her the court could have given a ’direct verdict’ in favour of the election peti tioner, on the basis of the facts pleaded in the petition, in case the returned candidate had not appeared to oppose the election petition. Thus, if, on the bas is of the facts pleaded in an election petition, the election petition can be al lowed even if the returned candidate does not appear, those facts would be ’mate rial facts’. 30. In short, in order to determine whether an election petition contains ’ material facts’ or not, the test would be whether the facts, which have been sta ted in the election petition, if accepted in their entirety, would lead to the a llowing of the election petition. This principle is in consonance with Order VII I Rule 10, which enables the Court to pronounce judgment in a case, if any party , from whom a written statement is required, fails to present the same within th e time permitted or fixed by the Court, as the case may be. 31. The allegation, therefore, that a person is not an eligible voter is me rely an allegation. This can be, at best, treated as a ground for disqualificati on of a person, but this is not sufficient to give a declaration that ’x’ is not an eligible voter. The election petition must ’disclose’ as to why the election petitioner considers the opponent, ’x’, as an ineligible voter. The reason for calling a person an ineligible voter has to be supported by ’material facts’. If such facts are given, then, one can say that there is an allegation that the op ponent is an ineligible voter and that this allegation is supported by ’material facts’. 32. The next question would be whether such ’material facts’, based on whic h the allegation has been made, are or are not true. The truth or veracity would be tested by evidence. Therefore, the test of a material fact is whether, in su pport of the allegations, all such facts, which are necessary to sustain the all egation, have or have not been stated in an election petition. If a person, ther efore, alleges that a person ’x’ is not eligible to cast vote, in a given electi on, by means of ’postal ballot’, his election petition must assign reason. The r eason, so assigned, must be complete in nature so that a Court can, on the basis of such pleadings, would be able to give the verdict that ’x’ is or is not an e ligible voter even without taking evidence if the opponent does not contest. Unl ess such facts are stated, it cannot be stated that the election petition disclo ses ’cause of action’. 33. Bearing in mind the position of law as indicated above, let me come to t he election petition, wherein, while alleging various anomalies in the counting of votes, the election petitioner, I find, averred, at Para 3, as under: I. COUNTING ANNOMALIES AFFECTING THE RESULT 3. That the result of election so far it concerned the defeat of the petiti oner and victory of respondent No. 1 has been materially affected by: A: (i) improper receiption of void and cancelled vote in favour of returned cand idates; (ii) improper rejection and cancellation of valid vote against the Petitioner; (iii) acceptance of unsigned ballot in favour of returned candidates; (iv) illegal rejection of postal vote; (v) missing of vote from Ballot Box; (vi) excess ballot discovered from Ballot Box; B: Under influence of political power during counting illegal counting by unauth orized employees C: Irregularities and illegalities committed during counting by the appointed Go vernment employees appointed by Respondent No. 2 & 3. 4. That available records showed that minimum 42 votes were found missing f rom the Ballot Box and as many as 37 excess and invalid votes discovered from Ba llot Box. 5. That many invalid and false vote were counted affecting the result of th e returned candidates; In 13/3 of Benger Vita G.P. as many as 12 numbers of vote unsigned by Presiding Officer were taken into consideration. 6. That in 10/9 Kumargathi L.P. School (Rt) as many as 100 ballots unsigned by Presiding Officer, was accepted in the favour of returned candidate ignoring the objection of Monowar Hussain Mondal. 7. That in table No. 12/6 and 12/8 as many as 130 numbers of cancelled vote s were accepted in favour of returned candidate. 8. That even in case of postal ballot there was material anomaly, out of 16 4 ballot issued, 158 were returned and received in office in due time by returni ng officer, but it is mysterious