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 as under:

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.

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.

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?

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.

31. According to the appellant, the pleadings in the election petition regarding corrupt practice are limited to digging of bore wells only and there is no pleading on the material facts whether and in what manner the voters of the constituency were influenced to vote in favour of the appellant. There is no pleadings 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.

34. The material fact regarding the estimates of costs involved is missing and is limited to the costs of drilling the bore holes and not of installing the water drawing plant and machinery in them to draw water from the bore holes. According to the appellant, the said pleading is totally general and vague in nature.

42. According to the appellant, the respondent failed to plead the fact which constitutes an offence under section 100 of the Act and the appeal deserves to be allowed and the election petition deserves to be dismissed.

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) xxx xxx xxx"

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 levelled 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.

65. 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 also well-settled that 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 election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground.

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. Considering the facts and circumstances of this case and principles applicable to the election petition, this appeal deserves to be allowed and we accordingly allow this appeal. Consequently, the election petition stands dismissed.

69. In the facts and circumstances of this case, we direct the parties to bear their own costs.