Case: Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar

3. The respondent herein has filed an election petition in the High Court of Bombay at Goa challenging the election of the appellant (respondent no.1 in the election petition) to Goa Legislative Assembly from 35 Sanvordem Assembly Constituency. In the assembly elections held on 2nd June, 2007, the appellant secured overwhelming mandate from the electorates securing 10705 votes out of total 19657 votes polled whereas, his nearest rival (respondent no.2 in the election petition) set up by the Bharatiya Janata Party secured only 3782 votes and the respondent (election petitioner) polled only 275 votes and forfeited his deposits. In the election petition before the High Court, a prayer has been made to declare the election of the appellant herein as null and void on ground of corrupt practices in which the appellant indulged during the elections. The allegations in the petition are asThe returned candidate with an intent to secure the votes of the voters of his constituency got 13 bore wells constructed at his own cost in the seven villages of the said constituency;ii) The returned candidate had also provided ambulances to the villages namely Collem, Sanvordem, Mollem, Dharbandora and Khirpal Dabhal as a part of his action in luring voters to vote in his favour.It has also been alleged that the appellant indulged in the abovementioned corrupt practices and incurred election expenditure in contravention of section 77 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") thereby crossing the limit of Rs.5,00,000/- prescribed under the Act and the Rules framed thereunder.5. The written statement to the election petition was filed by the appellant in the High Court. The allegations mentioned in the election petition were specifically refuted and denied in the written statement. Apart from number of preliminary objections, it was stated by the appellant that the election petition does not comply with the provisions of Chapter II of the Act and is, therefore, required to be dismissed at the threshold.6. The appellant also stated in the written statement that the election petition does not contain a concise statement of the material facts on which the respondent relies and, therefore, the petition does not comply with clause (a) of sub-section (1) of section 83 of the Act. It was also incorporated in the written statement that the election petition does not set forth the material facts of the alleged corrupt practice. The respondent herein has also failed to disclose the names of the parties alleged to have committed the corrupt practice. In the election petition, the date and place of the commission of such alleged corrupt practice has not been mentioned and, therefore, the election petition deserved to be dismissed as not maintainable.7. In the written statement it was also stated that the appellant secured 10705 votes whereas the respondent (election petitioner) got only 275 votes. The margin is too huge to state that the candidate has been returned on account of some alleged corrupt practice. The respondent in the election petition is required to show that the candidate has been elected and that the result of the election has been materially affected by any alleged corrupt practice committed as such.8. The allegations of alleged corrupt practices pleaded by respondent (election petitioner) are limited to digging of 13 bore wells in villages falling under the constituency in question after issuance of the election notification. The basis for this allegation is that the machinery allegedly used to dig bore holes in the ground as mentioned in paragraph 16 of the election petition was the same machinery owned by a third party which was hired in the past to work for the Salgaoncar Mining Industries at Vagus valley. The respondent in paragraph 16 of the election petition has also averred that the owner of the Salgaoncar Mining Industries is the appellant herein and on this sole basis the conclusion is sought to be drawn and averment made to the effect that it is obvious that the cost of the said wells and the other wells were borne by the returned candidate through his business concern, namely, Salgaoncar Mining Industries.9. The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading on the material facts whether any water drawing equipment was installed in the said bore holes so dug and that such bore holes became water bore wells and that the water could be drawn from them. Neither any facts have been pleaded nor particulars given to the effect of how and in what manner the voters were influenced in favour of the appellant so as to cast votes in his favour. No particulars of such voters have been given in the election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice the election has been vitiated in a manner that but for such bore holes not being dug the appellant would not have been returned as a winning candidate and either respondent herein or respondent no.2 of the election petition could have been returned as a winning candidate.10. There are no averments to the effect whether such bore holes were dug with the consent and/or active knowledge of the appellant. The estimates of cost involved supplied in the election petition are also limited to the cost of drilling the bore holes and not of installing the water drawing plant and machinery in them to draw water from the bore holes. As such, the said pleading is totally general and vague in nature and is entirely incapable of passing the muster of the test as laid in the Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315 or such facts as are pleaded in the petition are capable of being later on amplified in view of the test laid down in H.D. Revanna v. G. Puttaswamy Gowda & Others (1999) 2 SCC 217 so as to arrive at a conclusion that a triable case is made out.11. The second allegation of the alleged corrupt practice is to the effect that the appellant herein has, in the name of his mining company viz. M/s Salgaoncar Mining Industries Pvt. Ltd. Vagus, Palem, Bicholim, Goa, bought 5 Maruti Ambulances from M/s Sai Service Station Ltd., Verna, Salcete, Goa by incurring a cost of Rs.2,50,000/- for each of the ambulances and the cost of the 5 ambulances approximately would be a sum of Rs.12,50,000/- and once the said elections were declared and he filed his nomination for the said election, caused the said company to put the said ambulances at the disposal of the villagers of the said villages.12. There are absolutely no averments with regard to which villagers or electors had used such ambulances and for whose benefit such ambulances were deployed so as to constitute `bribe to the voters and that to an extent that would have influenced the outcome of the election. It is stated that any company operating mines on large scale with heavy machinery is under a statutory duty to maintain safety at the mines and is, as such, statutorily required to provide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons working at these mines. The various mines of Salgaoncar Mining Industries are spread over large areas falling in the constituency.13. The petition is absolutely devoid of any averment with regard to such ambulances being specifically deployed for the benefit of any elector in the constituency much less a number of electors who would have benefited from such service even if not admitted but proved to be true that could have influenced the election so as to change its outcome.14. There are absolutely no averments to the effect that these ambulances were deployed at which specific place, at which specific time and for the benefit of whom and whether at the instance or with knowledge of the appellant. As such, the said pleading is incapable of passing the test as laid in the Azhar Hussains case (supra) or such facts as are pleaded in the petition are capable of being later on amplified in view of the test laid down in H.D. Revannas case (supra) so as to arrive at a conclusion that a triable case is made out.15. The third allegation pertains to the election expenses incurred by the appellant on the basis that amount spent on digging of bores holes as well as the cost of 5 ambulances deployed for discharge of statutory requirements for carrying out mining operations by a company ought to be calculated towards the election expenses incurred by the appellant and, as such, devoid of any merit in view of the insufficiency of pleadings in terms of `material facts with respect to the two main allegations of corrupt practices relating to digging of borewells and 5 ambulances.16. The High Court has totally misdirected itself by misconstruing the ratio laid down in a catena of decision pronounced by this Court including the law laid down in Azhar Hussains case (supra) and H.D. Revannas case (supra) which if properly applied to the facts and circumstances of the present case would lead to rejection of the election petition in limine.17. The other important questions of law of general importance involved in the present petition require adjudication by this Court are whether amenities or facilities provided in general and not in particular to a candidate or his agent or by any other person with the consent of the candidate, is a corrupt practice or a bribery or a gratification within the meaning of section 100(1)(b) read with section 123(1) of the Act. Whether the absence of the prescribed affidavit in Form 25 as required under Rule 94A of the Conduct of Election Rules, 1961 and in terms of proviso to section 83 of the Act is fatal to the maintainability of an election petition on the ground of corrupt practices?18. In the election petition the respondent has mentioned that there was scarcity of water supply in certain villages. However, the respondent has failed to mention the numbers of houses which face such alleged water scarcity. In the written statement, the appellant also alleged that the respondent in the election petition has also failed to mention about water availability of these villages; the respondent has further failed to mention as to since when has there been water scarcity?19. The appellant in the written statement further alleged that the respondent has also not mentioned as to how many houses are there in these villages; how many persons are living in each of the houses; and how many persons are voters in these villages. The respondent has also not mentioned as to how many villages have water connections; and when and where the water scarcity had been noticed in these villages. He has also not mentioned as to when this complete breakdown or insufficient water supply had occasioned to these villages nor has he mentioned the date, time, place or any other details of such breakdown and has generally failed to give the details as required under section 83 of the Act.20. In the written statement it was also stated that the drilling machines allegedly owned by Tejaswini Bore Wells which were being operated at Ambeudok. There is, therefore, no concrete evidence that the boreholes drilled were bore wells to establish the flow of water from the ground table to surface ground. Similarly, the respondent has miserably failed to give particulars as to which villages did not have ambulances and what was the number of voters in the said villages. The respondent has failed to give particulars regarding parking of the ambulances i.e. where these ambulances were parked; in which villages they were parked; whether there was any driver to drive the said ambulances and as to where they were parked. Similarly, the respondent failed to give particulars regarding the bore wells whose cost as alleged amounts to Rs.6,38,557/-. Similarly, expenditure of Rs.12,50,000/- has been alleged to have been made for the purchase of ambulances. The particulars have not been provided. It is not clear as to how the respondent has come to the figure of Rs.5,00,000/- which according to him has been spent by the appellant. He did not give any particulars regarding either of the bore wells or the ambulances.21. `The appellant denied crossing the limit of Rs.5,00,000/- as prescribed under the Act and the Rules framed thereunder. It is also alleged that the appellant did not construct any bore wells nor did he provide any ambulances to the villagers and, therefore, the question of showing the same in the election expenses did not arise at all. The appellant denied that an amount of Rs.6,38,557/- and an amount of Rs.12,50,000/- as alleged has been the expenditure factually incurred by the appellant and denied having committed any corrupt practice. The question of the election results being materially affected does not arise at all and, therefore, the election petition is liable to be dismissed.22. It was specifically argued that the election petition is liable to be dismissed because there has been non compliance of section 83(1) of the Act because there was no sufficiency and adequacy of pleadings in the election petition. Section 83(1) of the Act reads asContents 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; andc) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 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 allegation of such corrupt practice and the particulars thereof.According to the appellant, the High Court had erroneously held that the election petition is not liable to be dismissed in limine under section 86 of the Act for alleged non-compliance of the provisions of section 83(1) of the Act.24. In the impugned judgment, the High Court erroneously concluded that the election petition when read as a whole discloses that it has material facts stated and regarding which triable issues are also framed and, therefore, it cannot be rejected at the preliminary stage.25. The High Court in the impugned judgment has discussed the decision of this Court in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp. SCC 93 . According to the appellant, the High Court erroneously distinguished this case. The impugned judgment of the High Court is neither in consonance with the provisions of the Act nor according to the settled legal position as has been crystallized in a number of cases by this court.26. Being aggrieved by the impugned judgment, the appellant has preferred this

Reasoning:
52. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.53. This Court in Samant N. Balkrishnas case (supra) has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.54. In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511 , the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge leveled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(l)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.In H.D. Revannas case (supra), the appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court thatwith the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure.It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition.63. The election petition must contain a concise statement of "material facts" on which the petitioner relies. There is no definition of "material facts" either in the Representation of Peoples Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action.In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is alsothat if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient.66. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the(respondent herein) and the election petition is liable to be summarily dismissed on that ground.67. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the Act.68. When we apply the aforementioned test to the election petition in this case, then the conclusion becomes irresistible that the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action.