KANIMOZHI KARUNANIDHI versus A. SANTHANA KUMAR & ORS
[2023] 4 S.C.R. 798, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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   [2023] 4 S.C.R. 798
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KANIMOZHI KARUNANIDHI
v.
A. SANTHANA KUMAR & ORS
(Civil Appeal No. 3411 of 2023)
MAY 04, 2023
[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
Representation of the People’s Act, 1951 – s.83(1)(a) – Non-
compliance of – Consequences of – Held: s.83(1)(a) mandates that
an Election petition shall contain a concise statement of material
facts on which the petitioner relies – If material facts are not stated
in an Election petition, the same is liable to be dismissed on that
ground alone, as the case would be covered by Clause (a) of r.11 of
Or.7 of the CPC – Code of Civil Procedure, 1908 – Or.7, r.11(a).
Representation of the People’s Act, 1951 – ss.100(1)(d)(iv),
83(i)(a) – Respondent no.1 filed Election Petition seeking
declaration that the election of the appellant-returned candidate
from No. 36, Thoothukudy Lok Sabha Constituency, in the Lok Sabha
election was void and liable to be set aside – The ground urged was
that the appellant did not provide information w.r.t the payment of
income tax of her spouse (a foreign citizen as per the appellant) in
the affidavit in Form no.26 – Appellant sought rejection of the
election petition, applications dismissed – Held: Appellant filled in
all the columns of Form No.26 by furnishing the information with
regard to her Permanent Account Number (PAN) and status of filing
of income tax return etc. and of her husband wherever applicable –
If according to the
respondent, the appellant had suppressed the
PAN of her spouse and also about the non-payment of income tax
of her spouse in the foreign country, it was obligatory on the part
of the respondent to state in the Election petition as to what was the
PAN of the spouse of the appellant in India which was suppressed
by her and how the other details furnished about her husband in
the said Form No. 26 were incomplete or false – Mere bald and
vague allegations without any basis would not be sufficient
compliance of the requirement of stating material facts in the Election
Petition – There are no material facts stated in the petition constituting
cause of action u/s.100(1)(d)(iv)– Election petition dismissed u/
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Or.VII, r.11(a), CPC r/w s.83(i)(a) – Impugned judgment of the High
Court set aside – Conduct of Election Rules 1961 – rr. 4, 4A –
Constitution of India – Article 324 – Code of Civil Procedure, 1908
– Or.7, r.11(a).
Representation of the People’s Act, 1951 – Right to elect, right
to be elected and the right to dispute an election – Nature of –
Held: A right to elect is neither a fundamental right nor a common
law right – It is purely a statutory right – Similarly, right to be elected
and the right to dispute an election are also statutory rights subject
to statutory limitations – An Election petition is not an action at
common law, nor in equity – It is a special jurisdiction to be exercised
in accordance with the statute creating it – The Election petition is
a serious matter, it cannot be treated lightly or in a fanciful manner
nor is it given to a person who uses it as a handle for vexatious
purpose – Constitution of India – Part-XV.
Words & Phrases – “material facts” – What constitutes –
Discussed – Representation of the People’s Act, 1951 – s.83(1)(a).
Allowing the appeals, the Court
HELD: 1.1 Section 83(1)(a) of RP Act, 1951 mandates that
an Election petition shall contain a concise statement of material
facts on which the petitioner relies. If material facts are not stated
in an Election petition, the same is liable to be dismissed on that
ground alone, as the case would be covered by Clause (a) of Rule
11 of Order 7 of the Code. The material facts
must be such facts
as would afford a basis for the allegations made in the petition
and would constitute the cause of action, that is every fact which
it would be necessary for the plaintiff/petitioner to prove, if
traversed in order to support his right to the judgement of court.
Omission of a single material fact would lead to an incomplete
cause of action and the statement of plaint would become bad.
Material facts mean the entire bundle of facts which would
constitute a complete cause of action. Material facts would include
positive statement of facts as also positive averment of a negative
fact, if necessary. In order to get an election declared as void
under Section 100(1)(d)(iv) of the RP Act, the Election petitioner
must aver that on account of non-compliance with the provisions
of the Constitution or of the Act or any rules or orders made
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under the Act, the result of the election, in so far as it concerned
the returned candidate, was materially affected. The Election
petition is a serious matter and it cannot be treated lightly or in a
fanciful manner nor is it given to a person who uses it as a handle
for vexatious purpose. An Election petition can be summarily
dismissed on the omission of a single material fact leading to an
incomplete cause of action, or omission to contain a concise
statement of material facts on which the petitioner relies for
establishing a cause of action, in exercise of the powers under
Clause (a) of Rule 11 of Order VII CPC read with the mandatory
requirements enjoined by Section 83 of the RP Act. [Para 28][825-
B-H; 826-A]
1.2 The election petitioner i.e., the respondent has made
very bald and vague allegations without stating the material facts
as to how there was non-compliance of any of the provisions of
the Constitution of India or of the RP Act or of the rules made
thereunder. If the averments made in the Election petition are
read in juxtaposition to the information furnished by the appellant-
returned candidate in Form No. 26, it clearly emerges that against
the information sought about the PAN number of the spouse of
the appellant, it has been stated that “No PAN No.”, “Spouse K.
Aravindhan Foreign Citizenship”. Against the information sought
with regard to “The financial year for which the last income tax
return has
been filed”, the information supplied by the appellant
about her spouse is “Not applicable”. The appellant has filled in
all the columns of Form No. 26 by furnishing the information with
regard to her Permanent Account Number and status of filing of
income tax return etc. and of her husband wherever applicable.
If according to the respondent-election petitioner, the appellant-
returned candidate had suppressed the Permanent Account
Number of her spouse and also about the non-payment of income
tax of her spouse in the foreign country, it was obligatory on the
part of the Election petitioner to state in the Election petition as
to what was the Permanent Account Number of the spouse of the
returned candidate in India which was suppressed by her and
how the other details furnished about her husband in the said
Form No. 26 were incomplete or false. Mere bald and vague
allegations without any basis would not be sufficient compliance
of the requirement of stating material facts in the Election Petition.
[Paras 30, 31][826-G-H; 827-A-D]
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1.3 It is also significant to note that an affidavit in Form 26
along with the nomination paper, is required to be furnished by
the candidate as per Rule 4A of the said Rules read with Section
33 of the said Act. The Returning Officer is empowered either
on the objections made to any nomination or on his own motion,
to reject any nomination on the grounds mentioned in Section
36(2), including on the ground that there has been a failure to
comply with any of the provisions of Section 33 of the Act.
However, at the time of scrutiny of the nomination paper and the
affidavit in the Form 26 furnished by the Appellant-returned
candidate, neither any objection was raised, nor the Returning
Officer had found any lapse or non-compliance of Section 33 or
Rule 4A of the Rules. Assuming that the election petitioner did
not have the opportunity to see the Form No. 26 filled in by the
Appellant-returned candidate, when she submitted the same to
the Returning Officer, and assuming that the Returning Officer
had not properly scrutinized the nomination paper of the appellant,
and assuming that the election petitioner had a right to question
the same by filing the Election petition under Section 100(1)(d)(iv)
of the said 34 Act, then also there are no material facts stated in
the petition constituting cause of action under Section
100(1)(d)(iv) of the RP Act. In absence of material facts
constituting cause of action for filing Election petition under
Section 100(1)(d)(iv)
of the said Act, the Election petition is
required to be dismissed under Order VII Rule 11(a) CPC read
with Section 13(1)(a) of the RP Act. Section 83(1)(a) of RP Act
mandates that an Election petition shall contain a concise
statement of material facts on which petitioner relies, and which
facts constitute a cause of action. Such facts would include positive
statement of facts as also positive averment of negative fact.
Omission of a singular fact would lead to incomplete cause of
action. So far as the present petition is concerned, there is no
averment made as to how there was non-compliance with
provisions of the Constitution or of RP Act or of the Rules or
Order made thereunder and as to how such non-compliance had
materially affected the result of the election, so as to attract the
ground under Section 100(1)(d)(iv) of the RP Act, for declaring
the election to be void. The omission to state such vital and basic
facts has rendered the petition liable to be dismissed under Order
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VII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act,
1951. Election petition filed by the respondent-election petitioner
is dismissed. [Paras 33, 34][827-F-H; 828-A-F]
N.P. Ponnuswami vs. Returning Officer, Namakkal
Constituency & Ors. 1952 (1) SCC 94; Jagan Nath vs.
Jaswant Singh & Ors. AIR 1954 SC 210 : [1954] SCR
892; Bhikji Keshao Joshi & Anr. vs. Brijlal Nandlal
Biyani & Ors. AIR 1955 SC 610 : [1955] SCR 428;
Murarka Radhey Shyam Ram Kumar vs. Roop Singh
Rathore & Ors. AIR 1964 SC 1545 : [1964] SCR 573
– followed.
Ram Sukh vs. Dinesh Aggarwal 2009 (10) SCC 541 :
[2009] 14 SCR 836; Hari Shanker Jain vs. Sonia
Gandhi 2001 (8) SCC 233 : [2001] 3 Suppl. SCR 38;
Samant N. Balkrishna & Anr. vs. George Fernandez &
Ors. 1969 (3) SCC 238 : [1969] 3 SCR 603; Union of
India vs. Association for Democratic Reforms & Anr.
2002 (5) SCC 294 : [2002] 3 SCR 696; Mahadeorao
Sukaji Shivankar vs. Ramaratan Bapu & Ors. 2004 (7)
SCC 181 : [2004] 3 Suppl. SCR 553; Anil Vasudev
Salgaonkar vs. Naresh Kushali Shigaonkar 2009 (9)
SCC 310 : [2009] 14 SCR 10 – relied on.
Case Law Reference
[2009] 14 SCR 836
relied on
Para 7 (ii)
[2001] 3 Suppl. SCR 38
relied on
Para 7 (ii)
[1969] 3 SCR 603
relied on
Para 7 (iii)
[2002] 3 SCR 696
relied on
Para 8 (i)
[1954] SCR 892
followed
Para 18
[1955] SCR 428
followed
Para 18
[1964] SCR 573
followed
Para 18
[2002] 3 SCR 696
relied on
Para 20
[2004] 3 Suppl. SCR 553
relied on
Para 25
[2009] 14 SCR
10
relied on
Para 26
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CIVIL APPELLATE JURISDICTION : Civil Appeal No.3411 of
2023.
From the Judgment and Order dated 19.11.2019 of the High Court
of Judicature at Madras in OA Nos.929 and 930 of 2019.
With
Civil Appeal No.3412 of 2023.
P. Wilson, Sr. Adv., Dr. Joseph Aristotle S, Richardson Wilson,
Apoorv Malhotra, Ms. Sapna I Pillai, Ms. Aishwarya Mishra, Ms. Priya
Aristotle, Advs. for the Appellant.
S. Makesh, N. I. Ramachandran, L. R. Venkatesan, Anoop
Prakash Awasthi, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms.
Aparna Singh, Ms. Sakshi Upadhyay, Advs. for the Respondents.
The Judgment of the Court was delivered by
BELA M. TRIVEDI, J.
1. Leave granted.
2. The appellant in both the appeals (hereinafter referred to as
the returned candidate)has challenged the legality of the impugned
common order dated 19.11.2019 passed by the High Court of Judicature
at Madras in Original Application Nos. 929/2019 and 930/2019 filed by
the appellant in Election Petition No. 3/2019, whereby the High Court
has dismissed both the said applications.
Factual matrix:
3. The factual matrix giving rise to the present appeals are that on
19.03.2019, the nominations were invited pursuant to the notification
issued by the Chief Election Commissioner for the elections to the 17th
Lok Sabha, scheduled to be held on 18.04.2019. The appellant filed her
nomination from No. 36-Thoothukudy Lok SabhaConstituency, along with
the affidavit in Form No. 26 as per Rule 4A of the Conduct of Election
Rules 1961
(hereinafter referred to as the said Rules). The scrutiny of
nomination papers was held by the Returning Officer on 27.03.2019.
The elections were held on 18.04.2019 as scheduled, and the appellant
was declared elected from the said No. 36 Thoothukudy Lok Sabha
Constituency with a margin of 3,47,209 votes on 23.05.2019.
KANIMOZHI KARUNANIDHI v. A. SANTHANA KUMAR
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4. The Election petitioner/respondent no. 1 herein claiming to be a
voter, has filed the Election Petition being no. 3/2019 before the High
Court under Section 80, 80A, 100(1)(d)(iv) of the Representation of the
People’s Act, 1951 (hereinafter referred to as the RP Act) seeking
declaration that the election of the returned candidate, i.e., the appellant
herein, from No. 36, Thoothukudy Lok Sabha Constituency, in the Lok
Sabha election conducted pursuant to the notification of the Chief Election
Commissioner dated 19.03.2019 was void and liable to be set aside, on
the ground that the information sought by the Election Commission of
India in regard to the payment of income tax of her spouse was not
provided by her in the affidavit – Form no.26 submitted along with the
nomination papers, and thus had intentionally suppressed and not disclosed
the same to the electors.
5. The precise allegations made in para 5 to 9 of the Election
petition read as under:
“5. The petitioner humbly submits that upon perusal of the
nomination paper submitted by the 2nd respondent, the returned
candidate herein, under Rule 4 of the conduct of election rules
1961, after the dissemination of the same to the public under the
Representation of the People Act, it is noticed manifestly that she
had failed to furnish the details of the payment of the income tax
of her spouse mention in the Tamil language as “THUNAIVAR”
namely Aravindan, Citizen of
Singapore, in the column requiring
to provide the PAN number, the last financial year of filing the
Income Tax Return and the total income shown in the income tax
return for the past five financial years, for each year in Rupees, in
the affidavit FORM 26, under Part A, No. 4 S. No. 2, by mentioning
in Tamil language “PORUTHATHU” which information is to be
mandatory furnished by the returned candidate in adherence to
the information sought by the Election Commission of India in
exercise of the statutory powers, conferred under Article 324 of
the Constitution of India and suppression of the same by the
returned candidate in non-compliance with the provisions of the
constitution of India, the result of the election is materially affected.
6. The petitioner humbly submits that in S.No. 3 of Part-B in the
affidavit Form 26 the 2nd respondent had provided the information
in regard to the constituency Number, name and State as No. 36,
Thoothukudi, Tamilnadu, but whereas in Part A No. 2, she
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mentioned that her electoral constituency is No. 19 CHEPAUK,
Tamil Nadu, exposes the improper submission of nomination form.
7. The petitioner humbly submits that having aggrieved against
the unconstitutional act of the 2nd respondent the returned
candidate, inasmuch as of which the electors of the constituency
are unable to have information regarding the income of the spouse
of the returned candidate disclosed in the income tax return,
consequently as the result is materially affected he is before this
Hon’ble Court praying to declare the election of the returned
candidate, the 2nd respondent herein, from No. 36, Thoothukudi
Constituency as void and set aside the same.
8. The petitioner respectfully submits that the nomination paper,
the affidavit FORM 26 is without particulars of the payment of
amount of income tax of her spouse (Thunaivar) namely Mr.
Arvindan, Citizen of Singapore though the information in regard
to the payment of the amount of income tax is sought by the
election commission of India in exercise of their statutory powers
under Article 324 of the Constitution of India in view of providing
information to the public under the Representation of People Act.
Besides, it is pertinent to state here that the income from the
foreign countries is subject to income tax under the Singapore
Income Tax Act and each income tax payer is provided the Income
Tax Reference Number by the authority.
9. The petitioner humbly submits that the suppression of
information by the returned candidate the 2nd respondent herein
in regard to the payment of income tax of her spouse herein in
regard to the payment of income tax of her spouse (Thunaivar)
debar the electors of the constituency to get complete information
of the payment of income tax to the income tax authority in
Singapore and lead to filing false affidavit in on adherence of the
rules.”
6. In the said Election petition, the appellant/returned candidate
had filed OA No. 929/2019 praying to strike off paragraphs 5 to 17 of
the Election petition and had filed OA No. 930/2019 praying to reject the
Election petition in limine on the ground inter alia that the averments
and allegations contained in the Election petition were wholly vague and
bereft of material facts, and therefore did not meet with the requirements
KANIMOZHI KARUNANIDHI v. A. SANTHANA KUMAR
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of Section 81, 83, 86 and 100 of the said Act. It was also averred that the
paragraph nos. 5 to 17 of the Election petition were bereft of material
facts and did not disclose any cause of action. The High Court vide the
impugned common order dismissed both the Original Applications filed
by the appellant/returned candidate.
Submissions by the Learned Counsels for the Parties:
7. The learned Senior Advocate Mr. P. Wilson for the appellant
made the following submissions:
(i)
Section 83(1)(a) the said Act makes it mandatory for all
election petitions to contain a concise statement of material
facts on which petitioner relies, however in the present case
the respondent-election petitioner has failed to plead the
material facts and therefore the Election petition is liable to
be dismissed in limine.
(ii)
Placing reliance on the decision of this Court in case of
Ram Sukh vs. Dinesh Aggarwal1, and in case of Hari
Shanker Jain vs. Sonia Gandhi2, he submitted that the
material facts would include positive statement of factsas
also positive averment of a negative fact, if necessary, and
that in absence thereof, the Election petition is liable to be
dismissed on that ground alone.
(iii)
Relying upon Samant N. Balkrishna &Anr. vs. George
Fernandez &Ors.3, he submitted that failure to plead even
a single material fact leads to an incomplete cause of action
and the statement of claim becomes bad.
(iv)
In the instant case, though
the respondent-election petitioner
has alleged that the appellant has suppressed facts in the
Form No. 26 Affidavit, he has failed to state as to which
facts were suppressed, and how there was non-compliance
of the provisions of the Constitution or of the Act or the
rules made thereunder, which had materially affected the
result of the election.
(v)
The entire Election petition filed by the respondent is based
on vague and bald assumptions, presumptions and
1 2009 (10) SCC 541
2 2001 (8) SCC 233
3 1969 (3) SCC 238
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conjectures without stating the material facts more
particularly the material facts in support of the ground
contained in Section 100(1)(d)(iv) of the said Act.
(vi)
Lastly,he submitted that though the candidates are required
to disclose their status of Income tax, of the assets and
liabilities as well as their spouses’ assets and liabilities, if
the columns in this regard are not applicable in the fact
situation, it could not amount to suppression of facts.
8. The learned Advocate Mr. Mukesh S. for respondent no. 1
made the following submissions:
(i)
The appellant has violated the law laid down by this Court
in Union of India vs. Association for Democratic Reforms
&Anr.4, wherein the Court had directed the Election
Commission to get the details of assets and liabilities of the
candidates and their family members, without differentiating
the status of citizenship.
(ii)
The appellant, in response to the query regarding income
tax dues of her spouse, had mentioned “NO”.The appellant
had failed to disclose the status of filing of income tax return
of her spouse in foreign country, as required to be disclosed
in the Form No. 26. The appellant had simply stated in the
said Form that her spouse was a foreign citizen without
disclosing the status of filing of income tax return and the
income tax reference number provided in Singapore.
(iii)
The appellant was bound to disclose the details of status of
filing of income tax return by her spouse in the foreign
country and non-disclosure of the same tantamounted to
the suppression of facts and non-compliance of the statutory
rules framed under the said Act.
(iv)
By not disclosing the financial status of her family,
theappellant had deprived the opportunity to the voters to
decide about the casting of votes.
(v)
Lack of transparency andnon-disclosure of facts in the Form
No. 26 had materially affected the result of the election.
4 2002 (5) SCC 294
KANIMOZHI KARUNANIDHI v. A. SANTHANA KUMAR
[BELA M. TRIVEDI, J.]
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Relevant Provisions of the Constitution of India and of the
R.P. Act, 1951:
9. In order to appreciate the rival contentions raised by the learned
counsel for the parties, it would be beneficial to refer to some of the
relevant provisions contained in the Constitution of India as also the R.P.
Act, 1951.
10. Part -XV of the Constitution of India deals with the Elections.
The superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of all elections to the Parliament and
to the legislature of every State and of elections to the offices of President
and Vice-President held under the Constitution have been vested in the
Election Commission under Article 324 of the Constitution of India. Article
325 provides that there shall be one general electoral roll for
everyterritorial constituency and that no person shall be ineligible for
inclusion in such rolls on the grounds only of religion, race, caste, sex or
any of them. Article 326 provides that elections to the House of people
and to the legislative assemblies of States shall be on the basis of adult
franchise. Article 327 enables Parliament to make laws with respect to
all matters relating to elections to either House of Parliament or to the
Houses of the legislature of a State. Article 328 enables the legislature
of a State, if Parliament has not made such legislation, to make laws
with respect to all matters relating to
elections to the Houses of legislature
of the State. Article 329 bars interference by courts in electoral matters
and clause(b) in particular provides that no election to the either House
of Parliament or to the House or either House of the legislature of a
State shall be called in question except by an election petition presented
to such authority and in such manner as may be provided for by or under
any law made by the appropriate legislature.
11. So far as the R.P Act, 1951, is concerned, its object as is
reflected in its short title is to provide for the conduct of elections of the
Houses of Parliament and to the House or Houses of the legislature of
each State, the qualifications and the disqualifications for membership
of those Houses, the corrupt practices and other offencesat or in
connection with such elections and the decision of doubts and disputes
arising out of or in connection with such elections. Part-VI of the R.P.
Act, 1951 deals with the disputes regarding Elections, and Chapter II
thereof deals with the presentation of the Election petitionsto the High
Court. Section 80 thereof states that no election shall be called in question
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except by an election petition presented in accordance with the provisions
of Part-VI.
12. Section 80A confers jurisdiction on the High Court to try election
petitions. Section 81 deals with the presentation of petitions which reads
as under:
“Section 81. Presentation of Petitions- (1) An election petition
calling in question any election may be presented on one or more
of the grounds specified in [sub-section (1)] of Section 100 and
Section 101 to the High Court by any candidate at such election
or any elector [within forty-five days from, but not earlier than
the date of election of the returned candidate or if there are more
than one returned candidate at the election and dates of their
election are different, the later of those two dates].
Explanation. —In this sub-section, “elector” means a person who
was entitled to vote at the election to which the election petition
relates, whether he has voted at such election or not.
(2) [***]
[(3) Every election petition shall be accompanied by as many
copies thereof as there are respondents mentioned in the
petitionand every such copy shall be attested by the petitioner
under his own signature to be a true copy of the petition.]
13. Section 82 mandates as to who shall be the parties to the
Election petition. Section 83 pertains to the contents of the petition, which
reads as under:-
83. Contents 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; and
(c) 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:
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[BELA M. TRIVEDI, J.]
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[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.]
(2) Any schedule or annexure to the petition shall also be signed
by the petitioner and verified in the same manner as the petition.]
14. As per Section 86, the High Court is empowered to dismiss an
election petition which does not comply with the provisions of Section 81
or Section 82 or Section 117. Section 87 deals with the procedure to be
followed by the High Court which reads as under:
“87. Procedure before the High Court.—
(1) Subject to the provisions of this Act and of any rules made
thereunder, 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 (5 of 1908) to the trial of
suits:
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) The provisions of the Indian Evidence Act, 1872 (1 of 1872),
shall subject to the provisions of this Act, be
deemed to apply in all
respects to the trial of an election petition.”
15. The grounds on which the High Court could declare the election
of the returned candidate to be void are enumerated in Section 100 which
reads as under:-
100. Grounds for declaring election to be void. - (1) Subject
to the provisions of sub-section (2) if the High Court is of opinion-
(a) —
(b) —
(c) —
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(d)that the result of the election, in so far as it concerns a returned
candidate, has been materially affected-
(i) —
(ii) —
(iii) —
(iv) by any non-compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under this Act, the
High Court shall declare the election of the returned candidate to
be void.”
16. In the instant case, the respondent-election petitioner has
challenged the election of the appellant on the ground that the result of
the election, insofar as it concerned the appellant, was materially affected
by non-compliance with Article 324 of the Constitution and by non-
compliance with Rule-4Aof the said Rules read with Section 33 of the
Act. It may be noted that Section 33 of the Act pertains to the presentation
of nomination paper and the requirements for a valid nomination. Section
36 pertains to the scrutiny of nominations by the Returning Officer. Sub-
section(2) thereof empowers the Returning Officer, either on the
objections made to any nomination or on his own motion, to reject any
nomination on the grounds mentioned therein. One of the grounds to
reject the nomination is, when there has been failure to comply with any
of the provisions of Section 33. Sub-section(4) of Section 36 states that
the Returning Officer shall not reject any nomination paper on the ground
of any defect which is not of a substantial character.
17. Part-II of the Conduct of Election Rules, 1961 deals with the
General
Provisions. Rule-4 and Rule-4A which pertain to the submission
of nomination paper and the Form of affidavit to be filed at the time of
delivering nomination paper read as under:-
“4. Nomination paper- Every nomination paper presented under
sub-section (i) of section 33 shall be completed in such one of the
Forms 2A to 2E as may be appropriate:
Provided that a failure to complete or defect in completing, the
declaration as to symbols in a nomination paper in Form 2A or
Form 2B shall not be deemed to be a defect of a substantial
character within the meaning of sub-section (4) of section 36.
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4A. Form of affidavit to be filed at the time of delivering
nomination paper- The candidate or his proposer, as the case
may be, shall, at the time of delivering to the returning officer the
nomination paper under sub-section (1) of section 33 of the Act,
also deliver to him an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form 26.”
Legal position:
18. The scheme of the Constitutional and statutory provisions
contained in the R.P. Act in relation to the nature of the right to elect, the
right to be elected and the right to dispute an election have been explained
and interpreted by various Constitutional Benches since 1952. To cite a
few are N.P. Ponnuswami vs. Returning Officer, Namakkal
Constituency & Ors.5, in Jagan Nath vs. Jaswant Singh &Ors.6, in
Bhikji Keshao Joshi &Anr. vs. Brijlal Nandlal Biyani &Ors.7, in
Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore
&Ors.8 etc.
19. What has been gleaned from the said authorities may be
summed up by stating that a right to elect, though fundamental it is to
democracy, is neither a fundamental right nor a common law right. It is
purely a statutory right. Similarly, right to be elected and the right to
dispute an election are also statutory rights. Since they are statutory
creations, they are subject to statutory limitations. An Election petition is
not an action at common law, nor in equity.It is a special jurisdiction to be
exercised in accordance with the statute creating it. The concept familiar
to common law and equity must remain strangers to election law unless
statutorily embodied. Thus, the entire election process commencing from
the issuance from the notification calling upon a constituency to elect a
member or members right upto the final resolution of the dispute,
concerning the election is regulated by the Representation of People
Act 1951. The said R.P. Act therefore has been held to be a complete
and self-contained code within which must be found any rights claimed
in relation to an election dispute.
20. In a very interesting and important decision in case of Union
of India v/s Association for Democratic Reforms and Another9, a
5 1952 (1) SCC 94
6 AIR 1954 SC 210
7 AIR 1955 SC 610
8 AIR 1964 SC 1545
9 (2002)5 SCC 294
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three- judge Bench of this Court raising a question- in a nation wedded
to republican and democratic form of government, whether before casting
votes, the voters have a right to know relevant particulars of their
candidates contesting election to the Parliament or to the legislature of
States, deliberated on the powers of the Election Commission under
Article 324 of the Constitution, and observed as under:-
“46. To sum up the legal and constitutional position which emerges
from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to
include all powers necessary for smooth conduct of elections and
the word “elections” is used in a wide sense to include the entire
process of election which consists of several stages and embraces
many steps.
2. The limitation on plenary character of power is when Parliament
or State Legislature has made a valid law relating to or in
connection with elections, the Commission is required to act in
conformity with the said provisions. In case where law is silent,
Article 324 is a reservoir of power to act for the avowed purpose
of having free and fair election. The Constitution has taken care
of leaving scope for exercise of residuary power by the
Commission in its own right as a creature of the Constitution in
the infinite variety of situations that may emerge from time to
time in a large democracy, as every contingency could not be
foreseen or anticipated by the
enacted laws or the rules. By issuing
necessary directions, the Commission can fill the vacuum till there
is legislation on the subject. In Kanhiya Lal Omar case [(1985) 4
SCC 628] the Court construed the expression “superintendence,
direction and control” in Article 324(1) and held that a direction
may mean an order issued to a particular individual or a precept
which many may have to follow and it may be a specific or a
general order and such phrase should be construed liberally
empowering the Election Commission to issue such orders.
3. ….
4. To maintain the purity of elections and in particular to bring
transparency in the process of election, the Commission can ask
the candidates about the expenditure incurred by the political parties
and this transparency in the process of election would include
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transparency of a candidate who seeks election or re-election. In
a democracy, the electoral process has a strategic role. The little
man of this country would have basic elementary right to know
full particulars of a candidate who is to represent him in Parliament
where laws to bind his liberty and property may be enacted.”
21. It is also pertinent to note that the insertion of Rule-4A and
Form-26 appended to the said Rules is also culmination of the said
observations made this Court in the aforesaid case, which require the
candidate to disclose the information and particulars in the form of affidavit
to be submitted along with the nomination paper.
22. The respondent-Election petitioner in this case has challenged
election of the appellant-returned candidate under Section 100(1)(d)(iv)
on the ground of non-compliance of the said Rule-4A and the Form-26.
However, the appellant had filed the applications seeking dismissal of
the Election petition in limine, for the non-compliance of the provisions
of Section 83(1)(a) of the said Act, read with Order VII, Rule 11 of
CPC.
23. The law so far developed and settled by this Court with regard
to the non-compliance of the requirement of Section 83(1)(a) of the EP
Act, namely-”an Election petition must contain a concise statement of
material facts on which the petitioner relies”, is that such non-compliance
of Section 83(1)(a) read with Order VII, Rule 11, CPC, may entail
dismissal of the Election Petition right at the threshold. “Material facts”
are facts which if established would give the petitioner the relief asked
for. The test required to be answered is whether the court could have
given a direct verdict in favour of the election petitioner in case the
returned candidate had not appeared to oppose the Election petition on
the basis of the facts pleaded in the petition. They must be such facts as
would afford a basis for the allegations made in the petition and would
constitute the cause of action as understood in the Code of Civil Procedure
1908. Material facts would include positive statement of facts as also
positive statement of a negative fact.
24. A Three-Judge Bench in Hari Shanker Jain vs. Sonia Gandhi
(supra) had an occasion to deal with Section 83(1)(a) of the RP Act and
the Court dismissed the Election petition holding that the bald and vague
averments made in the election petitions do not satisfy the requirements
of pleading “material facts” within the meaning of Section 83(1)(a) of
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the RP Act read with the requirements of Order VII Rule 11 CPC. It
was observed in para 23 and 24 as under: -
“23. Section 83(1)(a) of RPA, 1951 mandates that an election
petition shall contain a concise statement of the material facts on
which the petitioner relies. By a series of decisions of this Court,
it is well settled that the material facts required to be stated are
those facts which can be considered as materials supporting the
allegations made. In other words, they must be such facts as would
afford a basis for the allegations made in the petition and would
constitute the cause of action as understood in the Code of Civil
Procedure, 1908. The expression “cause of action” has been
compendiously defined to mean every fact which it would be
necessary for the plaintiff to prove, if traversed, in order to support
his right to the judgment of court. Omission of a single material
fact leads to an incomplete cause of action and the statement of
claim becomes bad. The function of the party 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. (See Samant N. Balkrishna v. George
Fernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603] , Jitendra
Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely
quoting the words of the section like chanting of a mantra does
not amount to stating material facts. Material facts would include
positive statement
of facts as also positive averment of a negative
fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999)
3 SCC 737] this Court has held, on a conspectus of a series of
decisions of this Court, that material facts are such preliminary
facts which must be proved at the trial by a party to establish
existence of a cause of action. Failure to plead “material facts” is
fatal to the election petition and no amendment of the pleadings is
permissible to introduce such material facts after the time-limit
prescribed for filing the election petition.
24. It is the duty of the court to examine the petition irrespective
of any written statement or denial and reject the petition if it does
not disclose a cause of action. To enable a court to reject a plaint
on the ground that it does not disclose a cause of action, it should
look at the plaint and nothing else. Courts have always frowned
upon vague pleadings which leave a wide scope to adduce any
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evidence. No amount of evidence can cure basic defect in the
pleadings.”
25. In case of Mahadeorao Sukaji Shivankar vs. Ramaratan
Bapu & Ors.10, a Three-Judge Bench of this Court again had an
occasionto deal with the issues as to what would constitute “material
facts” and what would be the consequences of not stating the “material
facts” in the Election petition, as contemplated in Section 83(1)(a) of the
RP Act, and the Court observed as under:
“6. Now, it is no doubt true that all material facts have to be set
out in an election petition. If material facts are not stated in a
plaint or a petition, the same is liable to be dismissed on that ground
alone as the case would be covered by clause (a) of Rule 11 of
Order 7 of the Code. The question, however, is as to whether the
petitioner had set out material facts in the election petition. The
expression “material facts” has neither been defined in the Act
nor in the Code. It may be stated that the material facts are those
facts upon which a party relies for his claim or defence. In other
words, material facts are facts upon which the plaintiff’s cause
of action or the defendant’s defence depends. What particulars
could be said to be material facts would depend upon the facts of
each case and no rule of universal application can be laid down. It
is, however, absolutely essential that all basic and primary facts
which must be proved at the trial by the party to establish
existence
of cause of action or defence are material facts and must be
stated in the pleading of the party.
7. But, it is equally well settled that there is distinction between
“material facts” and “particulars”. Material facts are primary or
basic facts which must be pleaded by the petitioner in support of
the case set up by him either to prove his cause of action or
defence. Particulars, on the other hand, are details in support of
material facts pleaded by the party. They amplify, refine and
embellish material facts by giving finishing touch to the basic
contours of a picture already drawn so as to make it full, more
clear and more informative. Particulars ensure conduct of fair
trial and would not take the opposite party by surprise.”
26. In Anil Vasudev Salgaonkar vs. Naresh Kushali
Shigaonkar11, this Court has discussed number of earlier decisions on
10 2004 (7) SCC 181
11 2009 (9) SCC 310
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the issue as to when the Election petition could be dismissed summarily
if it does not furnish the cause of action in exercise of powers under the
Code of Civil Procedure read with Section 83 of the R.P. Act.
“50. 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.
51. This Court in Samant N. Balkrishna case [(1969) 3 SCC
238] 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. 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(1)(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.
52. In V. Narayanaswamy v. C.P. Thirunavukkarasu [(2000) 2
SCC 294] this Court reiterated the legal position that an election
petition is liable to be dismissed if it lacks in material facts. In L.R.
Shivaramagowda v. T.M. Chandrashekar [(1999) 1 SCC 666]
this Court again considered the importance of pleadings in an
election petition alleging corrupt practice falling within the scope
of Section 123 of the Act and observed as under: (SCC p. 677,
para 11)
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“11. This Court has repeatedly stressed the importance of
pleadings in an election petition and pointed out the difference
between ‘material facts’ and ‘material particulars’. While the
failure to plead material facts is fatal to the election petition
and no amendment of the pleading could be allowed to introduce
such material facts after the time-limit prescribed for filing the
election petition, the absence of material particulars can be
cured at a later stage by an appropriate amendment.”
53. In Udhav Singh case [(1977) 1 SCC 511] this Court observed
as under: (SCC pp. 522-23, para 41)
“41. Like the Code of Civil Procedure, this section also
envisages a distinction between ‘material facts’ and
‘material particulars’. Clause (a) of sub-section (1)
corresponds to Order 6 Rule 2, while clause (b) is analogous
to Order 6 Rules 4 and 6 of the Code. The distinction between
‘material facts’ and ‘material particulars’ is important because
different consequences may flow from a deficiency of such
facts or particulars in the pleading. Failure to plead even a
single material fact leads to an incomplete cause of action
and incomplete allegations of such a charge are liable to be
struck off under Order 6 Rule 16, Code of Civil Procedure. If
the petition is based solely on those allegations which suffer
from lack of material facts, the petition is liable to be summarily
rejected for want of a cause of action. In the case of a
petition
suffering from a deficiency of material particulars, the court
has a discretion to allow the petitioner to supply the required
particulars even after the expiry of limitation.”
54. In H.D. Revanna case [(1999) 2 SCC 217] 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 that non-compliance with 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. In Harmohinder Singh
Pradhan v. Ranjeet Singh Talwandi [(2005) 5 SCC 46] this Court
observed thus: (SCC p. 51, para 14)
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“14. Necessary averment of facts constituting an appeal on
the ground of ‘his religion’ to vote or to refrain from voting
would be material facts within the meaning of clause (a) of
sub-section (1) of Section 83 of the Act. If such material facts
are missing, they cannot be supplied later on, after the expiry
of period of limitation for filing the election petition and the
plea being deficient, can be directed to be struck down under
Order 6 Rule 16 of the Code of Civil Procedure, 1908 and if
such plea be the sole ground of filing an election petition, the
petition itself can be rejected as not disclosing a cause of action
under clause (a) of Rule 11, Order 7 of the Code.”
55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC 511]
this Court again reiterated the distinction between “material facts”
and “material particulars” and observed as under: (SCC p. 527,
paras 51-52)
“51. A distinction between ‘material facts’ and ‘particulars’,
however, must not be overlooked. ‘Material facts’ are primary
or basic facts which must be pleaded by the plaintiff or by the
defendant in support of the case set up by him either to prove
his cause of action or defence. ‘Particulars’, on the other hand,
are details in support of material facts pleaded by the party.
They amplify, refine and embellish material facts by giving
distinctive touch to the basic contours of a picture already
drawn so as to make it full, more clear and more informative.
‘Particulars’ thus ensure
conduct of fair trial and would not
take the opposite party by surprise.
52. All ‘material facts’ must be pleaded by the party in support
of the case set up by him. 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, hence,
will entail dismissal of the suit or petition. Particulars, on the
other hand, are the details of the case which is in the nature of
evidence a party would be leading at the time of trial.”
56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC 604]
this Court observed as under: (SCC p. 612, para 20)
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“20. The election petition is a serious matter and it cannot be
treated lightly or in a fanciful manner nor is it given to a person
who uses this as a handle for vexatious purpose.”
57. 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. The election petition must contain a concise
statement of “material facts” on which the petitioner relies.
58. There is no definition of “material facts” either in the
Representation of the People 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. This Court in Harkirat Singh
case [(2005) 13 SCC 511] tried to give various meanings of
“material facts”. The relevant para 48 of the said judgment is
reproduced as under: (SCC pp. 526-27)
“48. The expression ‘material facts’ has neither been defined
in the Act nor in the Code. According to the dictionary meaning,
‘material’ means ‘fundamental’, ‘vital’, ‘basic’, ‘cardinal’,
‘central’, ‘crucial’, ‘decisive’, ‘essential’, ‘pivotal’,
‘indispensable’, ‘elementary’ or ‘primary’. [Burton’s Legal
Thesaurus (3rd Edn.), p. 349.] The phrase ‘material facts’,
therefore, may be said to be those facts upon which a party
relies for its claim or defence. In other words, ‘material facts’
are facts upon which the plaintiff’s cause of action or the
defendant’s defence depends. What particulars could be said
to be ‘material facts’ would depend upon the facts of each
case and no rule of universal application can be laid down. It
is, however, absolutely essential that all basic and primary facts
which must be proved at the trial by the party to establish the
existence of a cause of action or defence are material facts
and must be stated in the pleading by the party.”
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27. In Ram Sukh vs. Dinesh Aggarwal(supra), this Court again
while examining the maintainability of Election petition filed under Section
100(1)(d)(iv) of the RP Act,elaborately considered the earlier decisions
and observed that it was necessary for the election petitioner to aver
specifically in what manner the result of the election in so far as it
concerned the returned candidate was materially affected due to omission
on the part of the Returning Officer. The Court in the said case having
found that such averments being missing in the Election petition, upheld
the judgment of the High Court/Election Tribunal rejecting the Election
petition at the threshold. The Court observed in para 14 to 21 as under:
-
“14. The requirement in an election petition as to the statement
of material facts and the consequences of lack of such disclosure
with reference to Sections 81, 83 and 86 of the Act came up for
consideration before a three-Judge Bench of this Court in Samant
N. Balkrishna v. George Fernandez [(1969) 3 SCC 238].
Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter
alia, laid down that:
(i) Section 83 of the Act is mandatory and requires first a concise
statement of material facts and then the fullest possible particulars;
(ii) omission of even a single material fact leads to an incomplete
cause of action and statement of claim becomes bad;
(iii) the function of particulars is to present in full a picture of the
cause of action and to make
the opposite party understand the
case he will have to meet;
(iv) material facts and particulars are distinct matters—material
facts will mention statements of fact and particulars will set out
the names of persons with date, time and place; and
(v) in stating the material facts it will not do merely to quote the
words of the section because then the efficacy of the material
facts will be lost.
15. At this juncture, in order to appreciate the real object and
purport of the phrase “material facts”, particularly with reference
to election law, it would be appropriate to notice the distinction
between the phrases “material facts” as appearing in clause (a)
and “particulars” as appearing in clause (b) of sub-section (1) of
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Section 83. As stated above, “material facts” are primary or basic
facts which have to be pleaded by the petitioner to prove his cause
of action and by the defendant to prove his defence. “Particulars”,
on the other hand, are details in support of the material facts,
pleaded by the parties. They amplify, refine and embellish material
facts by giving distinctive touch to the basic contours of a picture
already drawn so as to make it full, more clear and more
informative. Unlike “material facts” which provide the basic
foundation on which the entire edifice of the election petition is
built, “particulars” are to be stated to ensure that the opposite
party is not taken by surprise.
16. The distinction between “material facts” and “particulars”
and their requirement in an election petition was succinctly brought
out by this Court in Virender Nath Gautam v. Satpal
Singh [(2007) 3 SCC 617] wherein C.K. Thakker, J., stated thus:
(SCC pp. 631-32, para 50)
“50. There is distinction between facta probanda (the facts
required to be proved i.e. material facts) and facta probantia (the
facts by means of which they are proved i.e. particulars or
evidence). It is settled law that pleadings must contain only facta
probanda and not facta probantia. The material facts on which
the party relies for his claim are called factap robanda and they
must be stated in the pleadings. But the facts or facts by means
of which facta probanda
(material facts) are proved and which
are in the nature of facta probantia (particulars or evidence) need
not be set out in the pleadings. They are not facts in issue, but
only relevant facts required to be proved at the trial in order to
establish the fact in issue.”
17. Now, before examining the rival submissions in the light of
the aforestated legal position, it would be expedient to deal with
another submission of the learned counsel for the appellant that
the High Court should not have exercised its power either under
Order 6 Rule 16 or Order 7 Rule 11 of the Code to reject the
election petition at the threshold. The argument is twofold viz.:
(i) that even if the election petition was liable to be dismissed
ultimately, it should have been dismissed only after affording an
opportunity to the election petitioner to adduce evidence in support
of his allegation in the petition, and
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(ii) since Section 83 does not find a place in Section 86 of the Act,
rejection of the petition at the threshold would amount to reading
into sub-section (1) of Section 86 an additional ground.
In our opinion, both the contentions are misconceived and
untenable.
18. Undoubtedly, by virtue of Section 87 of the Act, the provisions
of the Code apply to the trial of an election petition and, therefore,
in the absence of anything to the contrary in the Act, the court
trying an election petition can act in exercise of its power under
the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the
Code. The object of both the provisions is to ensure that
meaningless litigation, which is otherwise bound to prove abortive,
should not be permitted to occupy the judicial time of the courts.
If that is so in matters pertaining to ordinary civil litigation, it must
apply with greater vigour in election matters where the pendency
of an election petition is likely to inhibit the elected representative
of the people in the discharge of his public duties for which the
electorate have reposed confidence in him. The submission,
therefore, must fail.
19. Coming to the second limb of the argument viz. absence of
Section 83 in Section 86 of the Act, which specifically provides
for dismissal of an election petition which does not comply with
certain provisions of the Act, in our view, the issue is no longer res
integra. A similar plea was negatived by a three-Judge Bench of
this
Court in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214]
, wherein speaking for the Bench, A.N. Ray, J. (as His Lordship
then was) said: (SCC p. 221, para 23)
“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 emphasised that Section 83 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.”
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20. The issue was again dealt with by this Court in Azhar
Hussain v. Rajiv Gandhi [1986 Supp SCC 315] . Referring to
earlier pronouncements of this Court in Samant N.
Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. Madhav
Rao Scindia [(1977) 1 SCC 511] wherein it was observed that
the omission of a single material fact would lead to incomplete
cause of action and that an election petition without the material
facts is not an election petition at all, the Bench in Azhar Hussain
case [1986 Supp SCC 315] held that all the facts which are
essential to clothe the petition with complete cause of action must
be pleaded and omission of even a single material fact would
amount to disobedience of the mandate of Section 83(1)(a) of the
Act and an election petition can be and must be dismissed if it
suffers from any such vice.
21. We may now advert to the facts at hand to examine whether
the election petition suffered from the vice of non-disclosure of
material facts as stipulated in Section 83(1)(a) of the Act. As
already stated the case of the election petitioner is confined to the
alleged violation of Section 100(1)(d)(iv). For the sake of ready
reference, the said provision is extracted below:
“100. Grounds for declaring election to be void.—
(1) Subject to the provisions of sub-section
(2) if the High Court is of opinion—
***
(d) that the result of the election, insofar as it concerns a returned
candidate, has been
materially affected—
***
(iv) by any non-compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate
to be void.”
It is plain that in order to get an election declared as void under
the said provision, the election petitioner must aver that on account
of non-compliance with the provisions of the Constitution or of
this Act or of any rules or orders made under the Act, the result of
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the election, insofar as it concerned the returned candidate, was
materially affected.”
28. The legal position enunciated in afore-stated cases may be
summed up as under:-
i.
Section 83(1)(a) of RP Act, 1951 mandates that an Election
petition shall contain a concise statement of material facts
on which the petitioner relies. If material facts are not stated
in an Election petition, the same is liable to be dismissed on
that ground alone, as the case would be covered by Clause
(a) of Rule 11 of Order 7 of the Code.
ii.
The material facts must be such facts as would afford a
basis for the allegations made in the petition and would
constitute the cause of action, that is every fact which it
would be necessary for the plaintiff/petitioner to prove, if
traversed in order to support his right to the judgement of
court. Omission of a single material fact would lead to an
incomplete cause of action and the statement of plaint would
become bad.
iii.
Material facts mean the entire bundle of facts which would
constitute a complete cause of action. Material facts would
include positive statement of facts as also positive averment
of a negative fact, if necessary.
iv.
In order to get an election declared as void underSection
100(1)(d)(iv) of the RP Act, the Election petitioner must
aver that on account of non-compliance with the provisions
of the Constitution or of the Act or any rules or orders made
under the Act, the result of the election, in so far as it
concerned
the returned candidate, was materially affected.
v.
The Election petition is a serious matter and it cannot be
treated lightly or in a fanciful manner nor is it given to a
person who uses it as a handle for vexatious purpose.
vi.
An Election petition can be summarily dismissed on the
omission of a single material fact leading to an incomplete
cause of action, or omission to contain a concise statement
of material facts on which the petitioner relies for
establishing a cause of action, in exercise of the powers
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under Clause (a) of Rule 11 of Order VII CPC read with
the mandatory requirements enjoined by Section 83 of the
RP Act.
Conclusion:
29. In the light of the afore-stated legal position, let us see whether
the respondent/election petitioner had complied with the requirements
of Section 83(1)(a) of the RP Act, by stating “material facts” in the
Election petition, constituting cause of action and the ground as
contemplated in Section 100(1)(d)(iv) of the RP Act, for declaring the
election of the Appellant-returned candidate to be void. The bone of
contention raised by the learned counsel appearing for the respondent-
election petitioner is that the Election Commission of India had called for
the information prescribing the Form 26 in regard to status of filing of
income tax return of candidates and their family members by exercising
powers under Article 324 of the Constitution of India and in that the
petitioner had provided information that her spouse was working as
consultant at foreign country and earning salary against the columnNo.8,
Serial No.9(b) and 9A(b), respectively under Part A of Form 26.Besides,
she had mentioned “No” to the query regarding Income tax dues of her
spouse, (mentioned as “Ethumilai” in Tamil language).She had further
statedthat her spouse had bank accounts in Singapore with deposit of
dollars against column No.7 Serial No.(ii) of column in Part A of Form
26 but had failed to disclose the status
of filing income tax return of her
spouse in the foreign country. He therefore submitted that these material
facts which have already been stated in the Election petition, were
sufficient to constitute cause of action for filing Election petition under
Section 100(1)(d)(iv) of the RP Act.
30. It may be noted the precise allegations made by the respondent-
election petitioner in para 5 to 9 of his Election petition have already
been reproduced hereinbefore, from which it clearly transpires that the
election petitioner i.e., the respondent has made very bald and vague
allegations without stating the material facts as to how there was non-
compliance of any of the provisions of the Constitution of India or of the
RP Act or of the rules made thereunder. If the averments made in the
Election petition are read in juxtaposition to the information furnished by
the appellant-returned candidate in Form No. 26, it clearly emerges that
against the information sought about the PAN number of the spouse of
the appellant, it has been stated that “No PAN No.”, “Spouse K.
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Aravindhan Foreign Citizenship”. Against the information soughtwith
regard to “The financial year for which the last income tax return has
been filed”, the information supplied by the appellant about her spouse is
“Not applicable”. The appellant has filled in all the columns of Form No.
26 by furnishing the information with regard toherPermanent Account
Number and status of filing of income tax return etc. and of her husband
wherever applicable. If according to the respondent-electionpetitioner,
the appellant-returned candidate had suppressed the Permanent Account
Number of her spouse and also about the non-payment of income tax of
her spouse in the foreign country, it was obligatory on the part of the
Election petitioner to state in the Election petition as to what was the
Permanent Account Number of the spouse of the returned candidate in
Indiawhich was suppressed by her and how the other details furnished
about her husband in the said Form No. 26 were incomplete or false.
31. Mere bald and vague allegations without any basis would not
be sufficient compliance of the requirement of stating material facts in
the Election Petition. As well settled not only positive statement of facts,
even a positive statement of negative fact is also required to be stated,
as it would be a material fact constituting a cause of action. The material
facts which are primary and basic facts have to be pleaded by the Election
petitioner in support of the case set up by him to
show his cause of
action and omission of a single material fact would lead to an incomplete
cause of action, entitling the returned candidate to pray for dismissal of
Election petition under Order VII Rule 11(a) CPC read with Section
83(1)(a) of the RP Act.
32. It is also significant to note that an affidavit in Form 26 along
with the nomination paper, is required to be furnished by the candidate
as per Rule 4A of the said Rules read with Section 33 of the said Act.
The Returning Officer is empowered either on the objections made to
any nominationor on his own motion, to reject any nomination on the
grounds mentioned in Section 36(2), including on the ground that there
has been a failure to comply with any of the provisions of Section 33 of
the Act. However, at the time of scrutiny of the nomination paper and
the affidavit in the Form 26 furnished by the Appellant-returned candidate,
neither any objection was raised, nor the Returning Officer had found
any lapse or non-compliance of Section 33 or Rule 4A of the Rules.
Assuming that the election petitioner did not have the opportunity to see
the Form No. 26 filled in by the Appellant-returned candidate, when she
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submitted the same to the Returning Officer, and assuming that the
Returning Officer had not properly scrutinized the nomination paper of
the appellant, and assuming that the election petitioner had a right to
question the same by filing the Election petition under Section
100(1)(d)(iv) of the said Act, then also there are no material facts stated
in the petition constituting cause of action under Section 100(1)(d)(iv) of
the RP Act. In absence of material facts constituting cause of action for
filing Election petition under Section 100(1)(d)(iv) of the said Act,
theElection petition is required to be dismissed under Order VII Rule
11(a) CPC read with Section 13(1)(a) of the RP Act.
33. As elaborately discussed earlier, Section 83(1)(a) of RP Act
mandates that an Election petition shall contain a concise statement of
material facts on which petitioner relies, and which facts constitute a
cause of action. Such facts would include positive statement of facts as
also positive averment of negative fact. Omission of a singular fact would
lead to incomplete cause of action. So far as the present petition is
concerned, there is no averment made as to how there was non-
compliance with provisions of the Constitution or of RP Act or of the
Rules or Order made thereunder and as to how such non-compliance
had materially affected the result of the election, so as to attract the
ground under Section 100(1)(d)(iv) of the RP Act,
for declaring the
election to be void. The omission to state such vital and basic facts has
rendered the petition liable to be dismissed under Order VII, Rule 11(a)
CPC read with Section 83(i)(a) of the RP Act, 1951.
34. In that view of the matter, Election petition being no. 3/2019
filed by the respondent-election petitioner deserves to be dismissed, and
is accordingly dismissed.
35. The impugned judgment of the High Court is set aside. The
appeals stand allowed accordingly.
Divya Pandey
Appeals allowed.
(Assisted by : Bhavyata Kapoor and Roopanshi Virang, LCRAs)