ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR

Citation: [2009] 14 S.C.R. 10

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.S. BEDI

Case summary

ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR.pdf

Judgment text

[2009] 14 (ADDL. ) S. C. R. 10 ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR (Civil Appeal No. 5679 of 2009) ,. AUGUST 20, 2009 [DALVEER BHANDARI AND HARJIT SINGH BEDI, Jj,J Representation of the People Act, 1951: + Sections 77, 83, 100, 123 - Election - Election to Legislative Assembly - Election Petition challenging the election of the returned candidate - Allegation of corrupt .. practice - ·Election Petition allowed by the High Court - On / appeal, Held: All those facts which are essential to clothe the .. , election petitioner with a complete cause ofaction are material facts which must be pleaded and failure to place even a single .... material fact amounts to disobedience of the mandate of Section 83(1)(a) - On facts the election petition read as a whose does not disclose any cause of action - Conduct of Election Rules, 1961 - Rule 94A ·-Code of Civil Procedure, 1908, Order 6 Rule 113i Order 7 Rule 11(a). . Words & Phrases: .

f t- "Material facts" - Meaning of in the context of Representation of the People Act, 1951. The appellant was the returned candidate from a legislative ·constituency, having secured 10705 votes out of the total 19657 votes polled. Respondent who had secured only 275 votes filed an election petition challenging the election of appellant on the grounds that in seven villages in his constitue_l'_lcy the appellant got 13 bore wells constructed at his own cost; and also provided ambulances to five villages and for the abovesaid alleged corrupt practices the appellant had incurred expenditure ~ SHIGAONKAR ,. crossing the limit of Rs. 5,00,000/- prescribed under the }- Act and the Rules, and that these were done after issuance of election Notification. The High Court concluded that the election petition read as a whole disclosed material facts and allowed the election petition. . Hence the appeal. Allowing the appeal, the Court HELD: 1. 1.

There are no averments to the effect whether such bore holes were dug with the consent andJ or active knowledge of the appellant. The estimates of cost involved supplied in the election petition are also limited to the cost of drilling the bore holes and not of installing the water drawing plant and machinery in them to draw water from the bore holes. As such, the said ,.. pleading is totally general and vague in nature: [Para 10) .. [19-A-B] 1. 2. There are absolutely no averments with regard to which villagers or electors had used such ambulances and for whose benefit such ambulances were deploye~ so as to constitute 'bribe' to the voters and that to an extent that would have influenced the outcome of the election.

It is stated that any company operating mines on large scale with heavy machinery is under a statutory duty to maintain safety at the mines and is, as such, statutorily required to provide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons workin~ at these mines. The various mines of Salgaoncar Mining Industries... are spread over large areas falling in the constituency. The petition is absolutely devoid of any averment with regard to such ambulances being specifically deployed for the benefit of any elector in the constituency much less a number of electors who would have benefited from such service even if not admitted but proved to be true that could have influenced the election " so as to change its outcome. [Paras 12. and 13] [19-F-H; -f 20-A-B] 1. 3. The respondent has failed to give particulars regarding parking of the ambulances i. e.

where the~e ambulances were parked; in which villages they were parked; whether there was any driver to drive the said ambulances and as to where they were parked. Similarly, . the respondent failed to give particulars regarding the + bore wells whose cost as alleged amounts to Rs. 6,38,557/ -. Similarly, expenditure_of Rs. 12,50,000/- has been alleged to have been made for the ·purchase of ambulances. The particulars have not been provided. It is not clear as to ,-. how the respondent has come to the figure of Rs. 5,00,000/- which according to him has been spent by the appell~nt. He did not give any particulars regarding y either of the bore wells or the ambulances. [Para 20] [22- ' 8-D] 1. 4.

In tha impugned judgment, the High Court erroneously concluded that the election petition when read as a whole discloses that it has material facts stated and regarding which ti i ( laid down that all facts necessary to formulate a complete · icause 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. [Para 63] [37-D-F] 2. 4. In the context of a charge of corrupt practice, ... ' "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, , which the petitioner is bound to substantiate before he can succeed on that charge.

It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. [Para 65] [38-D] 2. 5. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election-petitioner and the --! ' election petition is liable to be summarily dismissed on ,_ ,, that ground. [Para 66) [38-E-F] 2. 6. The legal position has been crystallized by a series of judgments of this Court that all those facts which are essential to clothe the election petitioner with complete cause of action are "material facts" which must be pleaded, and the failure to place even a single + material fact amounts to disobedience of the mandate of section 83(1)(a) of the Ac;t.

[Para 67) [38-G-H] 2. 7. In the instant case, the election petition lacks the materials facts. The election petition read as a whole does .. ,·l not disclose any cause of action. Considering the facts y and circumstances of this case and principles applicable to the election petition, this appeal deserves to be allowed. [Para 68) [39-A-B] Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315; Hardwari Lal v. Kanwa/ Singh (1972)1 SCC 214; Udhav Singh v. Madhav Rao Scindia (1977) 1 sec 511; v. Narayanaswamy v. C. P. Thirunavukkarasu (2000) 2 SCC 294; LR. Shivaramagowda & Others v. T. M. Chandrashekar 1 (dead) by LRs & Others (1999) 1 SCC 666; Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi & Others (2005) 5 SCC 46; Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511 and Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC 604, relied on. H. D. Revanna v. G. Puttaswamy Gowda & Others (1999) 2 SCC 217; Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp.

SCC 93; Manubhai Nandlal Amorsey v. )' Popat/a/ Manila/ Joshi & Others (1969) 1 SCC 372 and Samant N. Balkrishna & Another v. George Fernandez & Others (1969) 3 SCC 238, referred to. Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB 135 SHIGAONKAR .. and Bruce v. Odhams Press Ltd. (1936) 1 KB 697: (1936) 1 All ER 287 (CA), referred to. Halsbury's Laws of England (4th Edn. ), Vol. 36, para 38, referred to. Case Law Reference: + 1986 (Supp) sec 315 relied on Para 10 (1999) 2 sec 211 relied on Para 10 (1987) Supp.

sec 93 referred to Para 25 (1878) 4 QBD 127: ' ~ 48 LJ QB 135 referred to Para 43 (1936) 1 KB 697: (1936) 1 All ER 287 (CA) referred to Para 44 (1969) 1 sec 372 referred to Para 47 (1969) 3 sec 238 referred to Para 48 (1972)1 sec 214 relied on Para 49 ~" (1977) 1 sec 511 relied on Para 54 ( c2000) 2 sec 294 relied on Para 55 (1999) 1 sec 666 relied on Para 56 (2005) 5 sec 46 relied on Para 59 c2005) 13 sec 511 relied on Para 60 c2008) 1 sec 604 relied on Para 61 ~ CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5679 of 2009. , From the Judgment & Order dated 4. 7. 2008 of the High 16 SUPREMECOURT REPORTS [2009] 14 (ADDL. ) S. C. R. Court of Judicature at Bombay at Panaji-Goa, in Election Application No. 5 of 2007 in Election Petition No. 1 of 2007. Raju Ramachandran, Nikhil Majithia, Pragati Neekhra for the Appellant. Ranjit Kumar, Prashant Shukla, Aabhas Parimal (for Binu Tamta) for the Respondent. + The Judgment of the Court was delivered by DALVEER BHANDARI, J. 1. Leave granted.

2. This appeal is directed against the judgment and order of the High Court of Bombay Bench at Goa passed in Election 'f' Application No. 5 of 2007 in Election Petition No. 1 of 2007 on 4th July, 2008. 3. The respondent herein has filed an election petition in the High Court of Bombay at Goa challenging the election of the appellant (respondent no. 1 in the election petition) to Goa Legislative Assembly from 35 Sanvordem Assembly Constituency. In the assembly elections held on 2nd June, 2007, the appellant secured overwhelming mandate from the + electorates securing 10705 votes out of total 19657 votes polled whereas, his nearest rival (respondent no. 2 in the election petition) set up by the Bharatiya Janata Party secured only 3782 votes and the respondent (election petitioner) polled only 275 votes and forfeited his deposits.

In the election petition before the High Court, a prayer has been made to declare the election of the appellant herein as null and void on ground of corrupt practices 'in which the appellant indulged during the elections. The allegations in the petition are as under: y (i) The returned candidate with an intent to secure the votes of the voters of his constituency got 13 bore wells constructed at his own cost in the seven/ ,, villages of the\ said constituency; ~ SHIGAONKAR [DAL'(EER BHANDARI, J. ] lo. (ii) The returned candidate had also provided ambulances to the villages namely Collem, Sanvordem, Mollem, Dharbandora and Khirpal Dabhal as a part of his action in luring voters to vote in his favour. 4. It has also been alleged that the appellant indulged in the abovementioned corrupt practices and incurred election r expenditure in contravention of section 77 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") thereby crossing the limit of Rs.

5,00,000/- prescribed under the Act and the Rules framed thereunder. 5. The written statement to the election petition was filed by the appellant in the High Court. The allegations mentioned --... - in the election petition were specifically refuted and denied in the written statement. Apart from number of preliminary 0 objections, it was stated by the appellant that the election petition does not comply with the provisions of Chapter II of the Act and is, therefore, required to be dismissed at the threshold. 6. The appellant also stated in the written statement that the election petition does not contain a concise statement of + the material facts on which the respondent relies and, therefore, the petition does not comply with clause (a) of sub-section (1) '" of section 83 of the Act. It was also incorporated in the written statement that the election petition does not set forth the material facts of the alleged corrupt practice.

The respondent herein has also failed to disclose the names of the parties alleged to have committed the corrupt practice. Ir. the election petition, the date and place of the commission of such alleged corrupt practice has not been mentioned and. therefore, the I election petition deserved to be dismissed as not maintainable. )-- 7. In the written statement it was also stated that the .. appellant secured 10705 votes whereas the respondent (election petitioner) got only 275 votes. The margin is too huge to state that the candidate has been returned on account of . H 'i i I "\ some alleged corrupt practice. The respondent in the election. . 4 petition is required to show that the candidate has been elected and that the result of the election has been materially affected by any alleged corrupt practice committed as such. 8.

The allegations of alleged corrupt practices pleaded by respondent (election petitioner) are limited to digging of 13 bore wells in villages falling under the constituency in question ,. after issuance of the election notification. The basis for this allegation is that the machinery allegedly used to dig bore holes in the ground as mentioned in paragraph 16 of the election petition was the same machinery owned by a third party which ; was hired in the past to work for the Salgaoncar Mining Industries at Vagus valley. The respondent in paragraph 16 of the election petition has also averred that the owner of the y Salgaoncar Mining Industries is the appellant herein and on this : sole basis the conclusion is sought to be drawn and averment made to the effect that it is obvious that the cost of the said wells and the other wells were borne by the returned candidate through his business concern, namely, Salgaoncar Mining • Industries. 9.

The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading 1 on the material facts whether any water drawing equipment was i; installed in the said bore holes so dug and that such bore holes became water bore wells and that the water could be drawn from them. Neither any facts have been pleaded nor particulars . given to. the effect of how and in what manner the voters were ' influenced in favour of the appellant so as to cast votes in his ' favour. No particulars of such voters have been given in the election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice -'( the election has been vitiated in a manner that but for such bore ... _ holes not being dug the appellant would not have been returned ~ as a winning candidate and either respondent herein or respondent no. 2 of the election petition could have been ,, >- SHIGAONKA~ [DALVEER BHANDARI, J.

) $ -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 the 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. ' . -f (2) xxx xxx -xxx'' 51. In this view of the matter, the court trying the election petition can actin exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) of the Code. These ANIL VASUDEV SALGAONKAR v. NARESH 33 KUSHALI SHIGAONKAR [DALVEER BHANDARI, J.

] provisions are set out as under: "Order 6, Rule 16: Striking out pleadings. - The court may at any stage of the proceedings order to be struck out or amend any matter in any pleading- (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the proc,ess of the court. Order 7, Rule 11(a): Rejection ofplaint. - The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; xxx xxx xxx xxx xxx xxx" 52. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. 53.

This Court in Samant N. Balkrishna's case (supra) has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. 54. In Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511, the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the . petitioner must be specified in order to succeed on the charge.

Whether in an election petition a particular fact is material or • not and as such required to be pleaded is dependent on the nature of the charge 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. 0 55. 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. 56. In L. R. Shivaramagowda & Others v. T. M.

Chandrashekar (dead) by LRs & Others (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: "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. ..... " SHIGAONKAR [DALVEER BHANDARI, J. ] ~· 57. In Udhav Singh's case (supra), this Court observed as under: "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 ' r.. _ leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be stuck 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 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. " 58. In H. D.

Revanna's case (supra), the appeal was filed ~ by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court 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. 59. In Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi &Others (2005) 5 SCC 46, this Court observed thus: ~ "14. Nec~ssary 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 t-1 ·~ 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 i-" clause (a) of Rule 11 Order 7 of the Code. " 60. 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: . ,,_ "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 pleadetf 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. " ANIL VASUDEV SALGAONKAR v. NARESH 37 KUSHALI SHIGAONKAR [DALVEER BHANDARI, J. ] ~ 61. In Sudarsha Avasthi v.

Shiv Pal Singh (2008) 7 SCC 604, this Court observed as under: "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............... n 4' 62. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to " lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. 63. The election petition must contain a concise statement of "material facts" on which the petitioner relies. There is no definition of "material facts" either in the Representation of Peoples Act, 1951 nor in the Code of Civil Procedure.

In a series of judgments, this court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action. 64. This court in Harkirat Singh's case (supra) tried to give various meanings of "material facts". The relevant paragraph 48 of the said judgment is reproduced as under:- "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, (Third Edn. ); p. 349].

The phrase 'material --1 facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, · · 'material facts' are facts upon which the plaintiffs 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 9f a cause of action or defence are material facts and must be stated in the pleading by the party. " ~ 65. In the context of a charge of corrupt practice, "tnaterial facts" would mean all basic facts constituting the ingredients ,. of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge.

It is also well-settled that if "material facts" are missing they cannot ·be supplied after expiry of period· of limitation for filing the election petition and the pleading becomes deficient. 66. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention . such an important averment in the petition is fatal for ttie election-petitioner (respondent herein) and the election petition is liable to be summarily dismissed on that ground. 67. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the Act.

ANIL VASUDEV SALGAONKAR v. NARESH 39 KUSHALI SHIGAONKAR [DALVEER BHANDARI, J. ] 68. When we apply the aforementioned test to the election A petition in this case, then the conclusion becomes irresistible that the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action. Considering the facts and circumstances of this case and principles applicable to the election petition, this appeal a deserves to be allowed and we accordingly allow this appeal. Consequently, the election petition stands dismissed. 69. In the facts and circumstances of this case, we direct the parties to bear their own costs. c G. N. Appeal allowed.