Case: Hardwari Lal Vs. Kanwal Singh

is to further the prospects of the election are alleged as statements of facts.20. The importance of material facts and the distinction between the material facts and particulars was also brought out in another recent decision of this Court in Manubhai Nandlal amersey v. Ponatlal Manilal Joshi (1969) 3 SCR 217 = (AIR 1969 SC 734 ) In that case a charge in the petition was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the Congress party candidate they would become the objects of divine displeasure and spiritual censure At a late stage of the trial the High Court gave leave to the election petitioner to amend the petition by adding fresh particulars of the corrupt practice Bachwat, J. speaking for the Court said that Section 83 of the Act was mandatory and particulars of corrupt practice were to be set out in ull. It was said in that case that no amendment in the shape of particulars if corrupt practice was permissible if he corrupt practice was not previously alleged in the petition. The obvious need not be stressed. It is that in election petition has the effect of lecturing an election void. It is a serious remedy. It is therefore, vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words any assistance were full statement of material fact. The submission is fallacious for the simple reason that the matter of assistance, the mode of assistance, the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer.Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared could the Court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action.21. The necessity of clear and precise allegations to support a plea of corrupt practice was emphasised by this Court in Harish Chandra Bajpai v. Triloki Singh 12 Election Law Reports 461 = (AIR 1957 SC 444 ) Venkatarama Ayyar, J. speaking for the Court in dealing with the powers of the Court to allow amendment in respect of illegal or corrupt practice said that where the allegation in the election petition in regard to the corrupt practice was that the respondents could in furtherance of their election enlist the support of Government servants, the words could enlist did not amount to an averment that in fact they enlisted their support. In other words, it was observed that the words could enlist did not allege a fact which happened. Therefore, the happening of fact as well as the fact itself is material Judged by that test in the present case there is no allegation which will amount to any averment of any assistance as a fact in the absence of the kind of assistance being set out as a fact.22. The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the elections.The gravament of the charge of corrupt practice within the meaning of section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.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 emphasized that section 33 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.24. In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act.

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

Explanation:
1[ds]17. The provisions of the aforesaid section indicate these heads of corrupt practice. First, the obtaining by a candidate or his agent or by any other giving of vote) for the furtherance of the prospects of that candidates election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election. Third the abetting by a candidate or his agent or by an other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidates election as mentioned. Fourth, the attempting to obtain or procure by a candidate 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 candidates election Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining, (b) procuring, (c) abetting and (d) attempting to obtain or procure assistance.18. Therefore material facts are to be alleged as to whether the candidate obtained or procured or abetted or attempted to obtain or procure any assistance other than the giving of vote. In Paragraph 16 of the election petition it is alleged that the appellant committed the corrupt practice of obtaining and procuring or attempting to obtain and procure assistance for the furtherance of the prospects of his election from the persons mentioned there. Reading Paragraph 16 of the election petition one will search in vain to find out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and procured or attempted to obtain and procure assistance from each or some of the persons mentioned there Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaining, procuring, attempting to obtain or procure assistance from each of the persons mentioned there. One will also conjecture and hazard as to what assistance was to obtained or procured or attempted to obtain or procure from each of the persons mentioned there, for the furtherance of the prospects of that candidate election. The giving of vote is not within the mischief of corrupt practice. It cannot be understood from the petitioner whether the giving of vote is the assistance alleged. It is, therefore, apparent that the appellant who was charged by the election petitioner with corrupt practice should be told in the election petition as to what assistance he sought. The type of assistance, the manner of assistance, the time of assistance, the person from whom assistance is sought are all to be set out in the petition. There is no allegation in the petition about the actual and the specific assistance with which the appellant can be charged in violation of the provisions of the Act. Nor is there any statement in the election petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered. The allegations against the appellant were in relation to six persons. Therefore, it was essential and imperative for the election petitioner to set out with exactitude and precision the type of assistance as also the manner in which assistance was obtained or procured from each person. The time, the date and the place of the assistance were also required to be set out in the particulars Thus it had to be alleged as the material facts as to what assistance the appellant obtained or procured or abetted or attempted to obtain or procure from which person and how the assistance furthered the prospects of the appellants election. If all the four variants and ingredients were to be charged against the appellant these had to be set out as statements of material facts in relation to each person.The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the elections.The gravament of the charge of corrupt practice within the meaning of section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.In the present case, it is not necessary to go to the question as to whether the High Court was justified in disallowing the particulars and in refusing to recall the witnesses for the reasons given in the order, because paragraph 16 of the election petition on which the High Court relied to declare the election of the appellant void does not amount to an election petition on the grounds mentioned in section 123 (7) of the Act.