IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :04-3-2002 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM O.A.No.18 of 2002 in ELECTION PETITION NO.1 of 2000 T.T.V.Dhinakaran .. Petitioner -vs- 1. P.Selvendran 2. Selvam P. 3. Mansoor Alikhan 4. P.R.Jegannathan 5. K.Elamurugan 6. Kandasamy K. 7. Kasimayan V. 8. Kalichamy V. 9. Sadayandi A. 10.Saravanapandian 11.Segar S.R. 12.Palanisamy 13.Pandiammal 14.Poovaiah S. 15.Rajagopal C. 16.Returning Officer, No.25 Periyakulam Parliamentary Constituency, Periyakulam. .. Respondents This application is filed to reject the Election Petition 1/2000 as it does not furnish any cause of action and is also totally lacking material facts within the meaning of Sec.83(1)(a) of the Representation of People's Act. For Petitioner : Mr.B.Kumar, Sr.Advocate, for Mr.A.Jenasenan For Respondents: Mr. T.R.Rajagopalan,Sr.Advocate for Mr.P.Wilson : ORDER An Election Petition is filed by the first respondent herein in Election Petition No.1 of 2000, challenging the election of the petitioner herein and seeking a declaration that the election of the petitioner herein from No.25 Periyakulam Parliamentary Constituency is null and void and to set aside the same on the grounds that (i) under S.100(1)(a) of the Representation of People Act, 1951 the returned candidate was not qualified to be chosen to fill the seat; (ii) under S.100(1 )(d)(i) of the Representation of People Act, 1951, the result of the election of the petitioner herein has been materially affected by the improper acceptance of his nomination; (iii) under S.100(1)(d)(iv) of the Representation of People Act, 1951, there is non compliance of provisions of Constitution or any rules or orders made under the Act; and (iv) the petitioner herein should have been disqualified under S.8(1)(e) read with S.100(1)(a) of the Representation of People Act, 1 951, and to declare that the first respondent herein has been duly elected from No.25 Periyakulam Parliamentary Constituency. 2. During the pendency of the main election petition, the first respondent therein and the petitioner herein has filed the instant application in O.A.No.18 of 2002 seeking rejection of the main election petition, as it does not furnish any cause of action and is totally lacking material facts within the meaning of S.83(1)(a) of the Representation of People's Act. 3. The averments in the affidavit filed in support of the application can briefly be stated as follows: It is averred in the main election petition in para 5 that the petitioner herein has acquired allegiance or adherence to foreign State viz. Republic of Singapore. The thrust of the said allegation is that by a process of acquisition, he has acquired allegiance or adherence to a foreign State. In support of this serious allegation, there is no material facts mentioned in the main elect ion petition. What is stated in the main petition is a copy of the memo of appeal preferred by the petitioner herein before the Appellate Board constituted under Foreign Exchange Regulation Act. This does not and cannot mean acquisition of allegiance or adherence. The allegations made in paragraph 9 of the main petition that the petitioner herein had applied for and granted by the Singapore authorities in January 1995, the status of Permanent Resident of Singapore; that this was subject to local laws of Singapore State; that the status of Permanent Resident is subject to the rights and liabilities, arising out of Singapore laws viz. Immigration Act and Companies Act; and that by such a permanent resident status in Singapore, the petitioner herein is clearly under an acknowledgment of allegiance or adherence to the Foreign State, thus incurring the disqualification for Membership of either of House of Parliament are totally lacking material facts. Firstly, it lacks in material facts viz. What are the rights and liabilities of a Permanent Resident Status holder in Singapore?. The first respondent herein seeks to equate the permanent Resident status as "Acquisition" of allegiance or adherence to a foreign State. The basic material facts required are what are the rights and liabilities following from or referable to a person having permanent resident rights in Singapore; and how those rights and liabilities that attach to a permanent resident of Singapore could be equated to or is allegiance or adherence to a foreign State. Without these material facts, it is impossible for the first respondent herein to meaningfully reply to the allegations in paragraph 9. Nor is it possible to conclude the basic premise that getting permanent resident status ipso facto means allegiance or adherence to a foreign State. Secondly, the allegations regarding the rights and liabilities arising out of the said local laws of Singapore lack totally material facts. What are the laws of Singapore, is not mentioned in the main petition. So also, how those laws are made applicable to a Permanent Resident and under what circumstances and conditions are not mentioned. It is also not mentioned how those laws or the provisions in those laws amount to acknowledgement of allegiance or adherence to a Foreign State so as to amount to disqualification within the meaning of Article 102 of the Constitution of India. It appears to be the requirement of law that if reliance is placed on any foreign law, it must specifically be pleaded and quoted as the foreign law itself amounts to a material fact. This Hon'ble Court cannot take judicial notice of any foreign law. Therefore, the main election petition lacks cause of action. The first premise that the disqualification by means of allegiance or adherence to a foreign State is by acquisition is an impossible concept, and one that is unknown to law, and the same cannot possibly exist. No process by which there could be an acquisition of allegiance or adherence to a foreign State is either mentioned or pleaded in the main petition. The second premise is acknowledgement of allegiance or adherence. The word "OR" used denoting the disjunctive itself renders the main petition vague and is a failure to furnish the exact fact and material fact. It appears to be that allegiance is one concept, and the adherence is entirely another. The ingredients of both are not the same. Hence, it cannot be averred that by acquisition, the petitioner herein has acknowledged allegiance or adherence to a foreign State. This vagueness flows from the lack of material fact. It is averred in paragraph 11 that this petitioner "in being a Director of Dipper Investments Ltd. Godfrey Resources and Benjan Tree is governed by UK Company Laws.... Being the Director of the above said Company he is under an acknowledgement of an allegiance or adherence to a foreign State under Art.102(1)(d) of the Constitution". The vagueness and lack of particulars are also too clear in the said paragraph. How being a Director of a Company in UK would, in law, amount to acknowledgement of allegiance or adherence to a foreign State so as to amount to a disqualification. Firstly, what are the rights and liabilities of a Director by laws of UK governing such Directorship of the Company is not averred in the main petition. Secondly, the laws of UK would constitute a material fact, that requires to be pleaded. Thirdly, it is not stated how there had been any instance of adherence to any such law in the first place by the petitioner. These material facts are required to be pleaded. Likewise, the allegation in para 13 of the main petition that he had suffered an imposition of penalty by the proceedings of the Special Director, Enforcement Directorate as an adjudicating authority also lacks material facts. The disqualification under S.8(1)(e) of the Representation of People Act 1951 clearly mentions that a person must be convicted by court of competent jurisdiction i.e. a person must have been convicted after lawful charge and a lawful trial. Adjudication proceedings or the orders passed thereunder are not convictions in a criminal case. It has been held by this Hon'ble Court that adjudication proceedings are merely civil actions and no such thing viz. mens rea or guilty intention is either required to be pleaded or proved. The averments in para 14 of the main petition also lack material facts. The registration of the petitioner as a voter in the voters list of Mylapore Constituency has become final. There is no averment of illegality or irregularity attendant upon such registration. There could not be an adjudication of the aspects raised in paragraph 14 of the main petition without all necessary parties being impleaded in the petition. Thus, the main election petition which lacks material facts and which does not furnish any cause of action is liable to be rejected. 4. The first respondent herein, who is the petitioner in the election petition has contested the application with the following averments in his counter: The petitioner had failed to notice the vital distinction between material facts and material particulars. As held in several decisions of the Supreme Court, material facts and material particulars certainly come out to two different things. Material facts are those facts which constitute cause of action. While the failure to plead material facts is fatal to the election petition, the absence of material particulars can be cured at a later stage by way of an appropriate amendment. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. If the Election Petition as such discloses a cause of action which if unrebutted could void the election, the provisions of Order VII Rule II C.P.C. cannot be invoked in such a case. The case of the first respondent herein is that the petitioner, the returned candidate, had suffered disqualification of membership under Article 102(1)(d) of the Constitution, as he is under an acknowledgement of allegiance or adherence to a foreign State. This is the material fact pleaded by the first respondent constituting a cause of action and as such, a triable issue in the election petition, which pervades the main petition. If this material fact is not rebutted, then the election of the petitioner herein shall stand void. Whatever that would become necessary to establish the said material fact can only constitute material particulars. Most of the material particulars have already been pleaded in the main petition, and documents relied upon by the first respondent have also been filed along with it. If some more documents are necessary to complete the material particulars, it can always be done at any stage of the proceedings. The copy of the memorandum of appeal preferred by the petitioner herein before the Appellate Board under the Foreign Exchange Regulation Act is mentioned as a material particular to prove the admitted material fact that the petitioner herein, by virtue of his acquiring a permanent resident status and being a director of certain companies in Singapore, owes an allegiance or adherence to a foreign state. In the said memorandum of grounds, the petitioner had categorically stated that he is a non resident Indian having also acquired a permanent resident status which certainly entails certain consequence of being bound by the laws of Singapore. Up to the sentence ending with "incurring the disqualification of Membership of either House of Parliament" in para 4 of the affidavit, the same extracts material facts pleaded by the first respondent in the main petition. The rest of the averments in para 4 of the affidavit can only be material particulars. The said material fact constituting the cause of action for disqualifying the petitioner has to be proved by material particulars, most of which have been referred to and filed along with the main petition. The application form for Permanent Resident Status and the conditions prescribed therein, the extract of the Registrar of Companies, Singapore, all go to prove the material fact pleaded by the first respondent with regard to the allegiance or adherence to a foreign state. As regards the provision of law applicable to the petitioner herein consequent upon his acquisition of permanent resident status, the same can only be material particulars which can always be relied upon by the first respondent herein by referring to the provisions of the Singapore Companies Act. The relevant provisions of the Singapore Companies Act cannot constitute material facts. For the purpose of finding out material fact and triable issue, this Hon'ble Court is entitled to find out the nature of the provisions of the Singapore laws that will become applicable to any person holding a permanent resident status in Singapore as well as any person who is a director of a company established in Singapore under the provisions of the Companies Act. Such examination will certainly not amount to administering the foreign laws by an Indian Court. The reliance of any foreign law would amount to a material particular, but not a material fact, since mere reference of a provision of foreign law by itself will not constitute material facts. It can only be in support of a material fact. The truth or otherwise of the pleadings taken in the Election Petition constituting a material fact cannot be gone into, and that has to be established only at the time of trial. The petitioner herein has failed to appreciate the difference between the material facts and material particulars. As regards the petitioner being a director of certain companies in U.K., it has been specifically stated that the petitioner comes under the purview of U.K. Company Laws and whatever reasons that have been stated in this counter affidavit as regards the petitioner being a permanent resident of Singapore and being a director of certain companies in Singapore will mutates mutandis apply to the petitioner being a director of U.K. Companies. By being a director of a foreign company and bound by the company laws of that country which imposes rights and liabilities and also penalties, the petitioner becomes clearly bound to abide by those provisions of foreign laws. To what extent the petitioner is bound is irrelevant so long as the petitioner is bound by certain provisions of foreign laws on account of the material facts that he owes allegiance or adherence to the laws of a foreign State. Thus, no election petition can be dismissed on the ground that it lacks all the material particulars supporting the material facts pleaded. Many of the documents establishing the allegiance or adherence to foreign laws have already been referred to and filed along with the main petition. The instant application has been filed only to delay the trial and disposal of the main petition. Therefore, this application may be dismissed with exemplary costs. 5. Both sides did not adduce any evidence both oral and documentary. 6. The point that would arise for determination in this original application is, "whether the election petition filed by the first respondent herein is liable to be rejected on the ground that it does not furnish any cause of action and is totally lacking in material facts within the meaning of S.83(1)(a) of the Representation of People's Act?" 7. As seen above, the first respondent herein has challenged the election of the petitioner herein and sought a declaration that the election of the petitioner herein from No.25 Periyakulam Parliamentary Constituency is null and void and to set aside the same on the grounds that (i) under S.100(1)(a) of the Representation of People Act, 1951 the returned candidate was not qualified to be chosen to fill the seat; (ii) under S.100(1)(d)(i) of the Representation of People Act, 195 1, the result of the election of the petitioner herein has been materially affected by the improper acceptance of his nomination; (iii) under S.100(1)(d)(iv) of the Representation of People Act, 1951, there is non compliance of provisions of Constitution or any rules or orders made under the Act; and (iv) the petitioner herein should have been disqualified under S.8(1)(e) read with S.100(1)(a) of the Representation of People Act, 1951, and to declare that the first respondent herein is a duly elected candidate from the said constituency. 8. Pending proceedings in the main election petition, the first respondent therein has moved the instant application seeking rejection of the main election petition No.1/2000 on the grounds that it did not furnish any cause of action and also it lacks in material facts with the meaning of S.83(1)(a) of the Representation of People's Act. 9. At the outset, it has to be pointed out that what are to be decided at this stage is as to whether the main election petition warrants an order of rejection by this court on the ground of non furnishing of cause of action and lack of material particulars within the meaning of S.83(1)(a) of Representation of People's Act, as put forth by the petitioner herein. 10. Arguing for the petitioner/first respondent, the learned Senior Counsel Mr.B.Kumar would submit that the petitioner was elected as a Member of Parliament in Periyakulam constituency in the general election for Lokh Sabha held in August 1999 with a very large margin; that the first respondent has filed the election petition seeking a declaration that the election of the petitioner/first respondent was null and void and to set aside the same alleging that he was not qualified under S.100(1)(a) of the Representation of People Act 1951 to be chosen to fill the seat as the returned candidate, and his election has been materially affected by the improper acceptance of his nomination and for the non compliance of provisions of the Constitution and the provisions under S.100(1)(d)(iv) of the Representation of People Act, 1951, and he has been disqualified under S.8(1)(e) read with S.100(1)(a) of the Representation of People Act, 1951; that the said election petition has got to be rejected, since it does not furnish the cause of action and totally lacks in material facts within the meaning of S.83(1)(a) of the Representation of People Act; that according to S.83(1)(a) of the Act, the election petition should contain concise statement of material facts, on which the election petitioner relied; that said provision is mandatory; that when the election petition does not contain material facts, disclosing the cause of action, the said election petition has got to be rejected outright; that no evidence could be permitted to be let in where the material facts have not been averred in the election petition; that material facts and material particulars are different; that the material facts are those facts constituting the ingredients necessarily to be averred and proved to complete the cause of action, while the material particulars are those which give finishing touch to the basic contours of a picture already drawn to make it full of details; that the failure to give even a single material fact is fatal to the election petition, whereas the deficiency in pleading material particulars could be permitted to be supplied later by way of an amendment of the election petition; that the election of the petitioner is being challenged in the election petition stating that the petitioner is a permanent resident status holder in Singapore; that he is a Director of a Company by name Adventure Holding in Singapore and three companies in United Kingdom; that the election petitioner has filed certain documents and xerox copies along with the election petition; that it is averred in the election petition that the permanent residential status of the petitioner herein is subject to the local laws of Singapore viz. Immigration Act and Companies Act of Singapore, and by holding permanent status of Singapore, the petitioner/first respondent was clearly under acknowledgement of allegiance or adherence to a foreign State and this is a disqualification for membership of Parliament; that it is also averred that the petitioner/first respondent being the Director of three Companies in U.K., he was under the acknowledgement of allegiance or adherence to a foreign State, and hence it has be come necessary to consider what is meant by allegiance to a foreign State and adherence to a Foreign State; that the allegiance to a foreign State is different from adherence to a foreign State; that "adherence" under Article 102 means that a person must follow or hold or maintain loyalty steadily and consistently to a State; that the decision of this court in HAJA SHERIFF VS. STATE reported in AIR 1985 MADRAS 55 is not applicable to the present facts of the case, since in that case the court on all proved facts came to the conclusion that he was paid a remuneration out of the Turkish National Fund, and he was holding loyalty to the Republic of Turkey which amounted to the adherence to the State of Turkey, and thus found him disqualified from being a member of the Legislature of the State; that from the said decision, it would be clear that adherence would require a close association with a foreign State; that insofar as the allegiance was concerned, it is such natural or legal obedience which every subject owes to his country; that the obligation of fidelity which the individual owes to the government or to the sovereign under whom he lives in return for the protection he receives, and thus the allegiance appears to require a status equivalent to that of a citizen of a country, so that by virtue of it, he must give allegiance to the State and receive protection from it therefor; and that in the light of the above decision of what is relevant by allegiance or adherence, the averment contained in the election petition cannot be said to have contained necessary material facts. 11. Added further, the learned Senior Counsel that the election petitioner has relied on document No.6, a declaration given in the memorandum of appeal against the decision of the Adjudicating Authority under Foreign Exchange Regulation Act filed before the Foreign Exchange Appellate Board to show that the petitioner/first respondent has described himself as a Non-resident Indian within the meaning of the provisions of FERA, and he is a Director of the Company Adventure Holding and other Companies in U.K., and thereby under acknowledgement of allegiance or adherence to the foreign State; that the allegations in the election petition on the face of it totally lack material facts; that it is not mentioned what are the rights and liabilities of a permanent resident holder of Singapore; that it was only if those rights and liabilities that attaches itself to a permanent resident of Singapore are mentioned, it could then be seen if such rights and liabilities or privileges would amount to allegiance or adherence within the meaning of Art.102 of the Constitution; that without these material facts and ingredients, the inference that the permanent resident status would mean allegiance or adherence to a foreign State could never be drawn; that in the light of the decisions in Haja Sheriff's case, the rights and obligations of a permanent resident or a Director must be of such a nature to show the connection with the State of Singapore or U.K.; that without those, there could not be adherence to the foreign State; that it would be impossible to contend that a commercial venture by being a Director of a Company could ever amount to a relationship with the State or to perform the duties on behalf of a State; that the whole of the election petition was about the application of laws of Singapore, which the election petitioner says Immigration Act of Singapore and its Companies Act; that it would undoubtedly be a material fact in the context of the election petition to say what is Immigration Act or Companies Act of Singapore; that it must be specifically pleaded as a material fact what this so called Immigration Act and Companies Act say about a permanent resident rights holder of Singapore; that if these two acts confer some privilege or impose obligations or duties, it must be specifically pleaded, and it must also be pleaded how those privileges of a permanent resident holder gets or duties or obligations imposed on him was inconsistent with his being a citizen of India or amount to allegiance or it