SENTHIBALAJI V versus A.P. GEETHA AND ORS
[2023] 6 S.C.R. 546, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SENTHIBALAJI V.
v.
A.P. GEETHA AND ORS.
(Civil Appeal Nos. 3895-3896 of 2023)
MAY 19, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Representation of the People Act, 1951 – ss.83, 123 – Failure
to plead material facts in the election petition concerning alleged
corrupt practice – Held: s.123 defines corrupt practices – s.83(1)(a)
mandates that an election petition must contain a concise statement
of material facts – When the allegation is of corrupt practice, the
basic facts constituting corrupt practice must be pleaded in order
to comply with s.83(1)(a) – In the present case, such concise facts
were not at all pleaded – Basic facts cannot be pleaded only by
stating that the same find place in the documents relied upon –
Failure to plead material facts concerning alleged corrupt practice
is fatal to the election petition – As material facts regarding
allegations of corrupt practice were not pleaded, the election petition
does not disclose any cause of action as far as the ground of corrupt
practice is concerned – Further, the ground of improper acceptance
of the nomination paper is also not supported by material facts – In
any case, the said ground is no longer relevant as the term of the
appellant has already expired – No purpose will be served by
keeping the Election Petition pending – Impugned judgment set
aside – Applications filed by the appellant for rejection of the petition
and/or for deletion of irrelevant
paragraphs allowed – Election
petition filed by first respondent is dismissed – Code of Civil
Procedure, 1908 – O.VI, r.16.
Representation of the People Act, 1951 – Material Facts –
Requirement of stating, non-compliance with – Effect of – Held:
The material facts are the primary facts which must be proved on
trial by a party to establish the existence of a cause of action –
Non-compliance with the requirement of stating material facts must
result in the rejection of the petition at the threshold.
[2023] 6 S.C.R. 546
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Disposing of the appeals, the Court
HELD: 1.1 Section 123 of the RP Act of 1951 defines various
corrupt practices for the purpose of the said enactment. The
corrupt practice has to be qua the election subject matter of
challenge in the Election Petition. In paragraph 5, the first
respondent has relied upon the representation made by her to
the Returning Officer by pointing out that the appellant and 6th
respondent have committed misconduct by suppressing the
findings of the Election Commission recorded in the order date
27th May 2016. Presumably, paragraph 5 of the petition is in
support of the ground of improper acceptance of the nomination
papers of the appellant. However, the first respondent has not
pleaded that under a particular statutory provision, the appellant
and 6th respondent were under an obligation to disclose the order
dated 27th May 2016 passed by the Election Commission while
filing nomination papers. It is not pleaded how on the ground of
the failure to disclose the said order, the appellant and 6th
respondent were disqualified from contesting the election. The
disqualification must be based on a statutory provision. The first
respondent has not pleaded that in law it was the obligation of
the appellant to disclose in the nomination paper, the earlier order
of the Election Commission by which the election was postponed.
The existence of no such obligation is pleaded. Therefore,
averments made in paragraphs nos. 4 and 5 of the Election
Petition
are unnecessary, thereby, attracting clause (a) of Rule 16 of Order
VI of CPC. Under clause (a) of Rule 16 of Order VI of CPC, the
Court has the power to strike out a pleading which is unnecessary.
[Paras 9, 11][553-G; 554-A, C-H]
1.2 Section 123 of the RP Act of 1951 defines corrupt
practices. In paragraphs 6 and 7, even bare particulars of any of
the corrupt practices covered by Section 123 have not been
pleaded. What is the nature of corrupt practice is also not
described except for making a bald allegation that in the
representations mentioned in paragraph 6, the first respondent
has set out electoral misconduct, corrupt practice, and bribery
on the part of the appellant. Clause (a) of sub-section (1) of Section
83 mandates that an election petition must contain a concise
statement of material facts. When the allegation is of corrupt
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practice, the basic facts constituting corrupt practice must be
pleaded in order to make compliance with Clause (a) of sub-
section (1) of Section 83. In this case, such concise facts are not
at all pleaded. Basic facts cannot be pleaded only by stating that
the same find place in the documents relied upon. The first
respondent has merely stated that the contents of representations
may be read as a part of the petition. This does not satisfy the
requirement of incorporating a concise statement of material facts.
Moreover, when the allegation is of corrupt practice, the
proceedings virtually become quasi-criminal. Therefore, the
elected candidate must get adequate notice of what is alleged
against him. That is why material facts concerning the ground of
corrupt practice must be pleaded. The outcome of such a petition
is very serious. It can oust a popularly elected representative of
the people. Therefore, non-compliance with the requirement of
stating material facts must result in the rejection of the petition
at the threshold. [Para 13][556-B-F]
1.3 The failure to plead material facts concerning alleged
corrupt practice is fatal to the election petition. The material facts
are the primary facts which must be proved on trial by a party to
establish the existence of a cause of action. In the present case,
taking the averments made in the petition as it is, not a single
material fact is pleaded making out an allegation
of corrupt practice
covered by Section 123 of the RP Act of 1951. [Para 15][558-B-
C]
Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi
(1987) Supp SCC 93 : [1987] SCR 369; V.S.
Achuthanandan v. P.J. Francis & Anr. (1999) 3 SCC
737 : [1999] 2 SCR 99 – relied on.
1.4 Paragraphs 3 and 4 are unnecessary, which do not deal
with something which happened after the election was declared.
Therefore, the said paragraphs being irrelevant will have to be
ordered to be deleted under Rule 16 of Order VI of CPC.
Paragraph 5 is not material for the alleged cause of action.
Paragraphs 6, 7 and 9 do not disclose any material facts in relation
to the allegations of corrupt practices. As material facts regarding
allegations of corrupt practice have not been pleaded, the election
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petition does not disclose any cause of action as far as the ground
of corrupt practice is concerned. Therefore, even these
paragraphs deserve to be deleted. The ground of improper
acceptance of the nomination paper is not supported by material
facts. In any case, the ground of improper acceptance of the
nomination paper is no longer relevant as the term of the appellant
has already expired. Therefore, in view of the findings which
recorded, no purpose will be served by keeping the Election
Petition pending. Accordingly, the impugned judgment of the High
Court is set aside and the applications filed by the appellant for
rejection of the petition and/or for deletion of irrelevant
paragraphs are allowed. [Para 21][561-F-G; 562-A-B]
M. Karunanidhi v. H.V. Hande & Ors. (1983) 2 SCC
473 : [1983] 2 SCR 629; Mulayam Singh Yadav v.
Dharam Pal Yadav & Ors. (2001) 7 SCC 98 : [2001] 3
SCR 1103; Ponnala Lakshmaiah v. Kommuri Pratap
Reddy and Ors. (2012) 7 SCC 788 : [2012] 6 SCR
851; Balwan Singh v. Lakshmi Narain & Others [1960]
3 SCR 91 – referred to.
Case Law Reference
[1987] SCR 369
relied on
para 6
[1983] 2 SCR 629
referred to
para 6
[2001] 3 SCR 1103
referred to
para 6
[1999] 2 SCR 99
relied on
para 8
[2012] 6 SCR 851
referred to
para 8
[1960] 3 SCR 91
referred to
para 8
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3895-
3896 of 2023.
From the Judgment and Order dated 23.02.2018 of the High Court
of Judicature at Madras in OA Nos. 653 and 654 of 2017.
Ranjith
Kumar, Sr. Adv., Senthil Jagadeesan, Sajal Jain,
Ms. Sonakshi Malhan, Advs. for the Appellant.
SENTHIBALAJI V. v. A.P. GEETHA AND ORS.
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Balaji Srinivasan, D. Raghu, K. Kathiresan, Devamshu Behl, Scv
Vimal Pani, A. Lakshminarayanan, Amit Sharma, Dipesh Sinha,
Ms. Pallavi, Ms. Sakshi Upadhyaya, Ms. Aparna Singh, D.kumanan,
Mrs. Deepa. S, Sheikh F Kalia, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. These appeals arise out of an Election Petition filed by the first
respondent under Section 81 of the Representation of the People Act,
1951 (for short, ‘the RP Act of 1951’). The Election Petition was filed
by the first respondent in the Madras High Court questioning the validity
of the election of 134 - Aravakurichi Assembly Constituency (for short,
“the said Constituency”). Polling was held on 19th November 2016 and
the result was declared on 22nd November 2016. The present appellant
is the 5th respondent in the Election Petition filed by the first respondent.
The present appellant was declared as elected. He was polled 88,068
votes. The 6th respondent in the Election Petition (the 6th respondent in
this appeal) was polled 64,407 votes. Only 82 voters voted for the first
respondent (Election Petitioner).
2. The first ground of challenge in the Election Petition is the
improper acceptance of nomination papers of the appellant and the 6th
respondent. The second ground of challenge is that the election is void
as the appellant has indulged in corrupt practices. The allegation is that
the appellant’s
agent and some other persons with the consent of the
appellant have indulged in corrupt practices.
3. An application was made by the present appellant inter alia
pointing out that no cause of action has been set out in the Election
Petition in support of the ground of corrupt practice. It was submitted by
the appellant that the Election Petition filed by the first respondent does
not disclose any material particulars and material facts about the allegation
of corrupt practice. It was contended that the allegations made in
paragraphs 3 to 9 are vague and therefore, the said paragraphs deserve
to be struck out by exercising the power under Rule 16 of Order VI of
the Code of Civil Procedure, 1908 (for short, ‘CPC’). The second prayer
was for the rejection of the Election Petition on the ground that the same
does not disclose the cause of action. A similar application was also filed
by the 6th respondent. By the impugned judgment, the learned Judge of
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the Madras High Court rejected the applications. While doing so, he
observed that the first respondent had forwarded copies of a compact
disc, photographs, etc. to the Returning Officer (5th respondent). The
learned Judge directed the first respondent to file all relevant documents
such as emails, photographs, video footage, etc. which were submitted
to the Returning Officer within a period of 15 days from the order. The
appellant has challenged the said judgment and order dated 23rd February
2018 by way of this Appeal.
SUBMISSIONS
4. Shri Ranjith Kumar, the learned senior counsel appearing on
behalf of the appellant has invited our attention to the requirement of
clauses (a) and (b) of sub-section (1) of Section 83 of the RP Act of
1951 of incorporating in an election petition a concise statement of
material facts and full particulars of any corrupt practice which is allegedly
committed by the returned candidate. He pointed out that clause (b) of
sub-section (1) of Section 83 also requires the election petitioner to make
full statement disclosing the names of the parties alleged to have
committed such corrupt practice and the date and place of commission
of such practice. The learned senior counsel also pointed out that initially,
the election to the said Constituency was to be held in May 2016. By
order dated 14th May 2016, the Election Commission of India (“the
Election Commission”) postponed the said election. There was a further
order passed on 27th
May 2016 by the Election Commission holding that
the election of the said Constituency cannot be allowed to proceed and
ought to be rescinded so that fresh elections could be held. Accordingly,
on 17th October 2016, the Election Commission rescheduled the election
to the said Constituency and declared that the polling will be held on 19th
November 2016. He pointed out that the first respondent filed a writ
petition before the Madras High Court challenging acceptance of the
nomination papers of the appellant and 6th respondent. He pointed out
that by the judgment and order dated 18th November 2016, the High
Court rejected the said writ petition filed by the first respondent and
imposed costs on the first respondent.
5. Inviting our attention to the averments made in the Election
Petition filed by the first respondent, he pointed out that paragraphs 3
and 4 of the Election Petition give the history of the declaration of the
poll and subsequent postponement. Paragraph 5 refers to the fact that
the representation made by the first respondent for challenging the validity
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of the nomination papers of the appellant and 6th respondent was rejected
by the Returning Officer. He pointed out that in paragraph 6 of the
Election Petition, the first respondent has relied upon four representations
made from 17th November 2016 to 22nd November 2016 to the Returning
Officer alleging that the appellant has committed electoral misconduct,
corrupt practice, and acts of bribery. It is alleged that the first respondent
handed over audio and video clippings to the Returning Officer to prove
the allegations in the representations made by email addressed to the
Returning Officer. In paragraph 7, the allegation is that result of the
election is vitiated due to improper acceptance of the nomination paper
of the appellant. Paragraph 8 contains a chart showing the respective
votes polled by various candidates. In paragraph 9, it is alleged that the
earlier election was cancelled due to misconduct on the part of the
appellant and the 6th respondent and that they have suppressed the findings
of the Election Commission recorded against them. He submitted that
along with the Election Petition, copies of the representations made by
the first respondent were filed. He urged that material facts and
particulars regarding the alleged corrupt practices are not found in the
Election Petition. He submitted that on the basis of the applications made
by the appellant, the High Court has directed the first respondent to file
copies of emails, photographs, and video footage which do not find place
in the list of documents filed along with the Election Petition. He urged
that the said direction is per se illegal.
6. Learned senior counsel relied upon decisions of this Court in
the case of (i) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi1 (ii)
M. Karunanidhi v. H.V. Hande & Ors.2 and (iii) Mulayam Singh
Yadav v. Dharam Pal Yadav & Ors.3. He submitted that once the
paragraphs in the Election Petition concerning allegations of corrupt
practice are struck out, nothing will survive in the Election Petition as
the term of the appellant is already over and a fresh election has been
held thereafter.
7. Lastly, the learned senior counsel submitted that while deciding
the applications made by the appellant, the High Court could have either
allowed the applications or rejected the same. But the High Court has
1 1987 Supp SCC 93
2 (1983) 2 SCC 473
3 (2001) 7 SCC 98
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committed an error by directing the first respondent to produce documents
which she had not produced.
8. Shri Balaji Srinivasan, the learned counsel representing the first
respondent pointed out that material facts in support of the allegations of
corrupt practice are already pleaded in the Election Petition. He pointed
out that the first respondent has relied upon representations made by her
to various authorities in which specific details of corrupt practices have
been set out. He submitted that as material facts have already been
pleaded, the High Court rightly did not exercise its powers under Rule
16 of Order VI of CPC. Relying upon a decision of this Court in the
case of V.S. Achuthanandan v. P.J. Francis & Anr.4, the learned
counsel submitted that material particulars can always be supplied later
on even if the period of limitation for filing the election petition is over.
He also relied upon another decision of this Court in the case of Ponnala
Lakshmaiah v. Kommuri Pratap Reddy and Ors.5. He submitted
that while dealing with applications under Rule 11 of Order VII or Rule
16 of Order VI of CPC, the Court cannot adopt a hypertechnical
approach. Relying upon what is held in paragraph 9 of a judgment of a
Constitution Bench of this Court in the case of Balwan Singh v. Lakshmi
Narain & Others6, he submitted that an opportunity is always available
to the election petitioner to apply for amendment of the election petition
for incorporating particulars
or for amplifying the particulars. He invited
our attention to the impugned order and urged that the High Court has
correctly applied settled legal principles and therefore, no interference is
called for.
OUR VIEW
9. We have given careful consideration to the submissions. We
have carefully perused the Election Petition filed by the first respondent.
As noted earlier, the election to the said Constituency was postponed in
terms of the order dated 27th May 2016 passed by the Election
Commission. The challenge to the election was on two grounds. Firstly,
that the nomination of the appellant was improperly accepted and
secondly, corrupt practices have been committed by the appellant or by
other persons with his consent. Section 123 of the RP Act of 1951 defines
various corrupt practices for the purpose of the said enactment. Naturally,
4 (1999) 3 SCC 737
5 (2012) 7 SCC 788
6 (1960) 3 SCR 91
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[ABHAY S. OKA, J.]
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the corrupt practice has to be qua the election subject matter of challenge
in the Election Petition.
10. Now, coming to the Election Petition filed by the first
respondent, paragraphs 1 and 2 are formal paragraphs which contain
the first respondent’s address and description of the respondents.
Paragraph 3 only records that by a notification dated 16th October 2016,
the Election Commission announced the election for the said Constituency.
Paragraph 4 quotes the order of the Election Commission by which the
election earlier scheduled was postponed due to reasons incorporated in
the said order. Paragraphs 3 and 4 are completely irrelevant to adjudicate
upon the grounds pleaded in the Election Petition.
11. In paragraph 5, the first respondent has relied upon the
representation made by her on 3rd November 2016 to the Returning
Officer by pointing out that the appellant and 6th respondent have
committed misconduct by suppressing the findings of the Election
Commission recorded in the order dated 27th May 2016. The first
respondent called upon the Returning Officer to disqualify the appellant
and the 6th respondent. It is further stated that the representation was
rejected by communication dated 5th November 2011. Therefore, the
first respondent filed a writ petition in the High Court which was dismissed
by the order dated 18th November 2016 with costs of Rs.3,000/- on the
first respondent. Presumably, paragraph 5 of the
petition is in support of
the ground of improper acceptance of the nomination papers of the
appellant. However, the first respondent has not pleaded that under a
particular statutory provision, the appellant and 6th respondent were under
an obligation to disclose the order dated 27th May 2016 passed by the
Election Commission while filing nomination papers. It is not pleaded
how on the ground of the failure to disclose the said order, the appellant
and 6th respondent were disqualified from contesting the election. The
disqualification must be based on a statutory provision. The first
respondent has not pleaded that in law it was the obligation of the appellant
to disclose in the nomination paper, the earlier order of the Election
Commission by which the election was postponed. The existence of no
such obligation is pleaded. Therefore, in our view, averments made in
paragraphs nos. 4 and 5 of the Election Petition are unnecessary, thereby,
attracting clause (a) of Rule 16 of Order VI of CPC. Under clause (a)
of Rule 16 of Order VI of CPC, the Court has the power to strike out a
pleading which is unnecessary.
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12. We will have to examine the averments regarding corrupt
practice in the light of Section 83 of R.P. Act of 1951 which reads thus:
“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:
 [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.”
(emphasis added)
Now we come to paragraphs 6 and 7 which read thus:
“6. The petitioner filed representations to 4th Respondents on
17.11.2016 two representations, 19.11.2016, 20.11.2016, 22.11.2016
explaining that the 5th Respondent committed electoral misconduct,
corrupt practice and bribery to the electorate. The 4th Respondent
did not consider the representations. She submitted that the 5th
Respondent used Government vehicles for election campaign. The
petitioner filed audio and video clippings to prove the allegations
made in the representation by electronic mail to the 4th
Respondent. She craves leave of the Court to treat the averments
in the above representations has part and parcel of this petition.
7. The petitioner submits that the returned candidate was
disqualified to be chosen to fill the said seat that he has committed
corrupt practice and the result of the election so far as it concerned
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[ABHAY S. OKA, J.]
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to the 5th Respondent has been materially affected by improper
acceptance of his nomination, by corrupt practice and non-
compliance of by not disclosing the earlier order of the election
commission for same constituency.”
13. Section 123 of the RP Act of 1951 defines corrupt practices.
In paragraphs 6 and 7, even bare particulars of any of the corrupt
practices covered by Section 123 have not been pleaded. What is the
nature of corrupt practice is also not described except for making a bald
allegation that in the representations mentioned in paragraph 6, the first
respondent has set out electoral misconduct, corrupt practice, and bribery
on the part of the appellant. Clause (a) of sub-section (1) of Section 83
mandates that an election petition must contain a concise statement of
material facts. When the allegation is of corrupt practice, the basic facts
constituting corrupt practice must be pleaded in order to make compliance
with Clause (a) of sub-section (1) of Section 83. In this case, such concise
facts are not at all pleaded. Basic facts cannot be pleaded only by stating
that the same find place in the documents relied upon. The first respondent
has merely stated that the contents of representations may be read as a
part of the petition. This does not satisfy the requirement of incorporating
a concise statement of material facts. Moreover, when the allegation is
of corrupt practice, the proceedings virtually
become quasi-criminal.
Therefore, the elected candidate must get adequate notice of what is
alleged against him. That is why material facts concerning the ground of
corrupt practice must be pleaded. The outcome of such a petition is very
serious. It can oust a popularly elected representative of the people.
Therefore, non-compliance with the requirement of stating material facts
must result in the rejection of the petition at the threshold.
14. At this stage, we may make useful reference to a well-known
decision of this Court of a Bench of three Hon’ble Judges in the case of
V.S. Achuthanandan4 which is in fact relied upon by the first respondent.
Paragraph 15 of the said decision reads thus:
“15. It would thus appear that the election petition was rejected
mainly on the ground that it did not disclose the cause of action as
according to the learned trial Judge the allegations regarding
corrupt practice were vague and did not disclose “material facts
and full particulars” of the corrupt practice alleged. It is evident
that the learned trial Judge did not distinguish between the “material
facts” and the “material particulars” of allegations regarding
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corrupt practices as defined under Section 123 of the Act. The
law on the point is well settled which appears to have not been
taken note of or appreciated by the learned trial Judge. After
referring to various pronouncements of this Court including cases
in Balwan Singh v. Lakshmi Narain [AIR 1960 SC 770 : (1960)
3 SCR 91], Samant N. Balkrishna v. George Fernandez [(1969)
3 SCC 238] , Virendra Kumar Saklecha v. Jagjiwan [(1972) 1
SCC 826], Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC
511], F.A. Sapa v. Singora [(1991) 3 SCC 375] and Gajanan
Krishnaji Bapat v. Dattaji Raghobaji Meghe [(1995) 5 SCC
347] and a host of other authorities, this Court in L.R.
Shivaramagowda v. T.M. Chandrashekar [(1999) 1 SCC 666
: (1998) 6 Scale 361] held that while failure to plead “material
facts” is fatal to the election petition and no amendment of
the pleading is permissible 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. An election petition was
not liable to be dismissed in limine merely because full particulars
of corrupt practice alleged were not set out. It is, therefore, evident
that material facts are such primary facts which must be proved
at the trial by a party to establish existence of a cause of action.
Whether in an election petition a particular fact is a material fact
or not, and as such, required to be
pleaded is a question which
depends on the nature of the charge levelled, the ground relied
upon, and in the light of the special circumstances of the case.
In Udhav Singh case [(1977) 1 SCC 511] the Court held: (SCC
p. 523, paras 42-43)
“In short, all those facts which are essential to clothe
the petitioner with a complete cause of action, are
‘material facts’ which must be pleaded, and failure to
plead even a single material fact amounts to disobedience
of the mandate of Section 83(1)(a).
‘Particulars’, on the other hand, are ‘the details of the case set up
by the party’. ‘Material particulars’ within the contemplation of
clause (b) of Section 83(1) would therefore mean all the details
which are necessary to amplify, refine and embellish the material
facts already pleaded in the petition in compliance with the
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requirements of clause (a). ‘Particulars’ serve the purpose of
finishing touches to the basic contours of a picture already drawn,
to make it full, more detailed and more informative.”
(emphasis added)
15. The consensus of judicial opinion is that the failure to plead
material facts concerning alleged corrupt practice is fatal to the election
petition. The material facts are the primary facts which must be proved
on trial by a party to establish the existence of a cause of action. In the
present case, taking the averments made in the petition as it is, not a
single material fact is pleaded making out an allegation of corrupt practice
covered by Section 123 of the RP Act of 1951. All that the first respondent
has pleaded is that he made representations to the Returning Officer
and other authorities complaining about the corrupt practice on the part
of the appellant. What is the nature of the corrupt practice is not
mentioned even in brief. Therefore, material facts, which according to
the first respondent constitute corrupt practice were not pleaded in the
Election Petition.
16. At this stage, we may refer to a decision of this Court in the
case of Dhartipakar Madan Lal Agarwal1 and in particular paragraph
nos. 13 and 14 which reads thus:-
“13. The appellant’s grievance that in entertaining the preliminary
objections and rejecting the election petition under Order VII Rule
11 the High Court deprived the appellant’s
opportunity to amend
the petition and to make good the deficiencies by supplying the
necessary particulars and details of the corrupt practice alleged
in the petition, is devoid of any merit. Firstly, the appellant was
free to file amendment application, but at no stage he
expressed any desire to make any amendment application
nor he made any application to that effect before the High
Court. It was open to the appellant to have made that
application but he himself did not make any such application.
The High Court was under no legal obligation to direct the
appellant to amend pleadings or to suo moto grant time for
the same. Secondly, the allegations of corrupt practice as
required by Section 83 were not complete and the same
did not furnish any cause of action, any amendment made
after the expiry of the period of limitation could not be
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permitted which would amount to raise a new ground of
challenge. The question, however, does not arise as the appellant
did not file any amendment application. During the course of
hearing of this appeal before us the appellant has made applications
for amendment of the election petition which we shall deal with
later.
14. Before we consider various paragraphs of the election petition
to determine the correctness of the High Court order we think it
necessary to bear in mind the nature of the right to elect, the right
to be elected and the right to dispute election and the trial of the
election petition. Right to contest election or to question the election
by means of an election petition is neither common law nor
fundamental right, instead it is a statutory right regulated by the
statutory provisions of the Representation of People Act, 1951.
There is no fundamental or common law right in these matters.
This is well settled by a catena of decisions of this Court in N.P.
Ponnuswami v. Returning Officer [(1952) 1 SCC 94: AIR 1952
SC 64 : 1952 SCR 218 : 1 ELR 133], Jagan Nath v. Jaswant
Singh [AIR 1954 SC 210 : 1954 SCR 892 : 9 ELR 231], Jyoti
Basu v. Debi Ghosal [(1982) 1 SCC 691 : AIR 1982 SC 983 :
(1982) 3 SCR 318]. These decisions have settled the legal position
that outside the statutory provisions there is no right to dispute an
election. The Representation of People Act is a complete and
self-contained Code within which any rights claimed in relation
to
an election or an election dispute must be found. The provisions
of the Civil Procedure Code are applicable to the extent as
permissible by Section 87 of the Act. The scheme of the Act as
noticed earlier would show that an election can be questioned
under the statute as provided by Section 80 on the grounds as
contained in Section 100 of the Act. Section 83 lays down a
mandatory provision in providing that an election petition
shall contain a concise statement of material facts and set
forth full particulars of corrupt practice. The pleadings are
regulated by Section 83 and it makes it obligatory on the
election petitioner to give the requisite facts, details and
particulars of each corrupt practice with exactitude. If the
election petition fails to make out a ground under Section
100 of the Act it must fail at the threshold. Allegations of
corrupt practice are in the nature of criminal charges, it is
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necessary that there should be no vagueness in the
allegations so that the returned candidate may know the
case he has to meet. If the allegations are vague and general
and the particulars of corrupt practice are not stated in the
pleadings, the trial of the election petition cannot proceed
for want of cause of action. The emphasis of law is to avoid a
fishing and roving inquiry. It is therefore necessary for the Court
to scrutinise the pleadings relating to corrupt practice in a strict
manner.”
(emphasis added)
17. This Court held that Section 83 makes it obligatory for the
election petitioner to give requisite facts, details, and particulars of each
corrupt practice with exactitude. In this case, requisite facts are
completely missing. The allegations are very vague and general in nature
and, therefore, there is no cause of action to proceed on the ground of
corrupt practice. Therefore, in our view, the averments made in
paragraphs 6 and 7 do not constitute a cause of action available to proceed
on the ground of corrupt practices contemplated by Section 123.
Paragraph 8 contains the details of the result of the election. Paragraphs
2 to 4 and 8 are formal in nature and not at all relevant.
18. In paragraph 9, again there are vague and general allegations
that the appellant and 6th respondent committed electoral misconduct
and corrupt practice. Even this paragraph is bereft of material facts.
Paragraph 9 (a) has been
added which contains only one sentence that
acceptance of nomination of the appellant and 6th respondent is illegal.
Not a single material fact is pleaded in support of the plea that the
acceptance of the nomination paper is improper.
19. While rejecting the applications made by the appellants, the
learned Single Judge of the High Court had issued directions in paragraphs
19 and 20 which read thus:-
“19. In this case, as already held that the election petition discloses
material facts and particulars and copy of the CD, photographs
etc sent to the respondent/returning officer has not been given to
the applicants herein/respondents 5 & 6. The 1st respondent/
election petitioner has not stated anything new in the election
petition, these documents have already been sent to the 5th
respondent/returning officer during election. The Returned
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candidate/5th respondent has not denied and the same can be
decided at the time of trial. Therefore, it is necessity on the
part of the first respondent/election petitioner to produce
the copies of emails, photographs, CD and video footages
etc., before this Court and serve the same to the applicants
herein/contesting respondents 5 and 6.
20. With the above observation, all the three applications are
dismissed. This Court directs the first respondent/ election
petitioner to file all the relevant documents before this
Court within 15 days from the date of this order viz., emails,
photographs and video footages etc., if any filed before the
5th respondent/returning officer during the Election and
also to serve those materials to applicants herein/contesting
respondents 5 and 6.”
 (emphasis added)
20. We must note here that the emails, photographs, and video
footage have not been relied upon in the list of documents filed along
with the Election Petition. At the highest, these documents will constitute
particulars and not material facts. Secondly, the High Court had no reason
to direct the election petitioner to file the said documents on record while
dismissing applications filed by the appellant and the 6th respondent. It
was for the first respondent to seek permission to produce the documents.
The first respondent never sought such permission. Even if the documents
are produced, the same will be without any foundation in the pleadings.
Therefore, it is
very difficult to sustain the said direction as well.
21. As held earlier, paragraphs 3 and 4 are unnecessary, which do
not deal with something which happened after the election was declared.
Therefore, the said paragraphs being irrelevant will have to be ordered
to be deleted under Rule 16 of Order VI of CPC. Paragraph 5 is not
material for the alleged cause of action. Paragraphs 6, 7 and 9 do not
disclose any material facts in relation to the allegations of corrupt
practices. As material facts regarding allegations of corrupt practice
have not been pleaded, the election petition does not disclose any cause
of action as far as the ground of corrupt practice is concerned. Therefore,
even these paragraphs deserve to be deleted. As stated earlier, the ground
of improper acceptance of the nomination paper is not supported by
material facts. In any case, the ground of improper acceptance of the
nomination paper is no longer relevant as the term of the appellant has
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already expired. Therefore, in view of the findings which we have
recorded above, no purpose will be served by keeping the Election Petition
pending. Accordingly, we set aside the impugned judgment of the High
Court and allow the applications filed by the appellant for rejection of
the petition and/or for deletion of irrelevant paragraphs. Election Petition
No.1 of 2017 pending before the High Court of Judicature at Madras
stands dismissed. There will be no order as to costs.
Divya Pandey
Appeals disposed of.
(Assisted by Varun Dhond and Shevali Monga, LCRAs]