Case: Durai Muthuswami Vs. N. Nachiappan &amp; Ors

also to prove that the result of the election had been materially affected by the improper acceptance of the nomination of the other defeated candidate, Unless he succeeds in proving that if the votes cast in favour of the candidate whose nomination had been improperly accepted would have gone in the petitioners favour and he would have got a majority he cannot succeed in his election petition. Section 100 (l) (d) (i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination."Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondents election should be declared to be void. He had also given the material facts as required under S. 83 (l) (a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the lst respondents nomination had been improperly accepted.4. One other point which the learned Judge failed to notice is that on the allegations contained in the petition, if they were established, the respondent must he deemed to suffer the disqualification under S. 9-A of the Act and all that S. l00 (l) (a,) requires is that on the date of his election a returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or this Act. In order to declare his election void it is not necessary that the election petition should state that the result of the election was materially affected thereby. The question of the election being materially affected does not arise in a case falling under S. 100 (1) (a).5. Though it is not necessary to cite any authorities we may refer to a few decisions. In Balakrishna v. Fernandez, 1969-3 SCR 603 = (AIR l969 SC 1201) this Court pointed out that the first sub-section of S. l00 lays down the grounds for declaring an election to be void, that Ss. 100 and 101 deal with the substantive law on the subject of election, that these two sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected. It further observed:The heads of substantive rights in S. 100 (1) are laid down in two separate parts: the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void in the result of the election in so far as it concerns the returned candidate, can be held to be materially affected on proof of some other facts..... In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification.....These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is conditional that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination....This condition has to be established by some evidence direct or circumstantial. It is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned.Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act. Here we have to consider Sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-section (1) of S. 100 and S. 101. That as we have shown above creates the substantive right. Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies..... The section is mandatory and requires first a concise statement of material facts...... What is the difference between material facts and particulars? The word material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full 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."That lays down the proper test. In Vishwanatha v. Konappa, 1969-2 SCR 90 = (AIR 1969 SC 604 ) this Court pointed out that:"Where by an erroneous order of the Returning Officer poll is held which, but for that order was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for that order, would have been declared elected."6. It was urged before us by Mr. Natesan that we should summon the documents which were only four in number and decide the case ourselves. We do not know whether any further material would or would not be necessary to establish the ground sought to be made out by the appellant or whether any oral evidence would be necessary. In any case we do not consider it either necessary or expedient that we should deal with the matter directly ourselves.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]"Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondents election should be declared to be void. He had also given the material facts as required under S. 83 (l) (a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the lst respondents nomination had been improperlydo not know whether any further material would or would not be necessary to establish the ground sought to be made out by the appellant or whether any oral evidence would be necessary. In any case we do not consider it either necessary or expedient that we should deal with the matter directly ourselves.