RAM SUKH v. DINESH AGGARWAL

Citation: [2009] 14 S.C.R. 836

Court: Supreme Court of India

Bench: D.K. JAIN, H.L. DATTU

Case summary

RAM SUKH v. DINESH AGGARWAL.pdf

Judgment text

[2009] 14 (ADDL. ). S. C. R. 836 RAM SUKH v. DINESH AGGARWAL (Civil Appeal No. 6128 of 2008) SEPTEMBER 18, 2009 [D. K. JAIN AND H. L. DATTU, JJ. ] REPRESENTATION OF THE PEOPLE ACT, 1951: s. 83(1)(a), proviso, ss. 86 and 100(1)(d) - State Legislative Assembly elections - Election petition seeking to declare the election of returned candidate as void on the ground of corrupt practices - High Court dismissing election petition at preliminary stage for lack of material facts and particulars and for want of requisite affidavit in support of 0 a/legations of corrupt practices - HELD: All facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of a single material fact would amount to disobedience of the mandate of s. 83(1)(a) - Proviso to s.

83(1)(a) mand12tes that election petition alleging corrupt practices must be accompanied by an affidavit in support of such allegation - Election petition must be dismissed if it suffers from any such vice - In the instant case, pleading is vague and does not spell out as to how the election results were materially affected - The facts stated in election petition fall short of being "materiai facts" as contemplated ins. 83(1)(a) to constitute a complete cause of action in relation to allegation uls 100(1)(d)(iv) - View taken by High Court upheld - s. 83(1)(a) and (b) - Expressions ,. "material facts" and "particulars" - Connotation of and distinction between - Explained. s. 87 - Scope of- HELD: By virtue of s. 87, provisions of CPC apply to trial of an election petition and in the absence of anything to the ·contrary in the Act, court trying an election RAM SUKH v. DINESH AGGARWAL 837 petition can act in exercise of its power under CPC including 0. 6, r. 16 and 0. 7, r.

11- Code of Civil Procedure, 1908- 0. 6, r. 16, 0. 7, r. 11. WORDS AND PHRASES: Expressions "material facts" and "particulars" - Connotation of in the context of Election Law. The appellant was a candidate for election to the State Legislative Assembly of Uttrakhand held on 21. 2. 2007. He lost the election to respondent no. 1. He filed an election petition before the High Court challenging the election of the returned candidate. Respondent no. 1 filed an application under 0. 6, rr. 16 and 17 and 0. 7, r. 11 of the Code of Civil Procedure, 1908 read with s. 86 of the Representation of the People Act, 1951 raising a preliminary objection to the maintainability of writ petition, inter alia, on the grounds that the petition was lacking in material facts and particulars and was also defective for want of requisite affidavit in support of allegations of. corrupt practice and that since it did not disclose any cause of action, it deserved to be dismissed at the threshold.

It was contended that on account of failure on the part of the election petitioner to file an affidavit in support of the allegations, the entire election petition was liable to be dismissed; and allegations of corrupt practices made in paragraphs 14, 17, 19, 20 as 21 also the ground D and E of the election petition were liable to be struck off. The High Court dismissed the election petition. ... In the instant appeal filed by the election petitioner, it was contended for the appellant that the High Court should not have exercised its power either under 0. 6, r. 16 or 0. 7, r. 11 of the Code of Civil Procedure, 1908 to reject the election petition at the threshold.

It was submitted: (i) that even if the election petition was liable to be dismissed, it should have been dismissed only after " affording an opportunity to the election petitioner to adduce evidence in support of allegation in the petition and (ii) that rejection of petition at the threshold would amount to reading into sub-section (1) of s. 86 an additional ground. Dismissing the appeal, the Court HELD: 1. 1. In Jagan Nath*, this Court has held that the statutory requirement of election/law must be strictly observed; that the election contest is not an action at law or suit in equity, but is purely statutory proceeding unknown to the common law and that court possesses no common law power. It is also well settled that the success of a candidate who has won at an election . should not be lightly interfered with and any petition ~ seeking such interference must strictly conform to the requirements of the law.

Nevertheless, it ··is a;so to be borne in mind that one of the essentials of the election law is to safeguard. the pu1·ji. y of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Representation of the People Act, 1951. [Para 7] [846-F- { H; 847-A] *Jagan Nath Vs. Jaswant Singh and Ors. [1954] S. C. R. 892, relied on. Ravinder Singh vs. Janmeja Singh & Ors. 2000 (8) SCC 191, referred to. 1. 2. Section 83, the pivotal provision for the instant case, requires that: (a) the election petition must contain concise statement of "material facts" on which petitioner relies and (b) he should also set fo1·th "full RAM SUKH v. DINESH AGGARWAL 839 • particulars" of the alleged corrupt practices. Proviso to clause (c) of sub-section (1) of s.

83 also provides that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particlllars thereof. Thus, ·the requirement of disclosure of "material facts" and "full particulars" as stipulated in the Section is mandatory. Section 86 mandates that where the election petition does not comply with the provisions of s. 81 or s. 82 or s. 117 of the Act, the High Court should dismiss . the election petition. [Para 9] [850-D-F] 2. 1. The phrase "material facts" has neither ~een . defined in the Act nor in the Code of Civil Procedure, 1908 . ) and, therefore, it has been understood by the cou$ in . , general terms to mean the entire bundle of facts w~ich would constitute a complete cause of action. T~us, "material facts" are facts upon which the plaintiffs c~use of action or defendant's defence depends.

[Para 12] (851- D] Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu & Ors. (2004) 7 SCC 181 and Samant N. Balkrishna & Ant: Vs. George Fernandez & Ors. (1969) 3 SCC 238, relied otl. ' 2. 2. 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 distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub-section (1) of s. 83. "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 entir~ ,,,,,. edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise. [Para 14] [852-D-F] Virender Nath Gautam Vs. Satpal Singh & Ors. (2007) 3 "sec 617, relied on. 2. 3. Omission of a single material fact would lead ito incomplete cause of ~ction and an election petition without the material facts is not an election petition at all. Therefore, all the facts which are essential to clothe the -- (2004) 1 sec 181 relied on para 12 (1969) 3 sec 238 relied on para 13 (2007) 3 sec 617 relied on para 15 '-r '( (1972) 1 sec 214 relied on para 17 1986 (Supp) sec 315 relied on para 18 • (1977) 1 sec 511 relied on' para 18 I CIVIL APPELLATE. JURISDICTION : Civil Appeal No. 6128 of 2008. From the Judgment & Order dated 15. 1. 2008 of the High ; Court of Uttarakhand at Nainital in Election Petition No. 3 of 2007.

Chandra Shekhar, Sanjay Tyagi, Saurabh Upadhyay and S. K. Verma for the Appellant. The Judgment of the Court was delivered by D. K. JAIN, J. 1. This appeal under Section 116A of the ~ Representation of the People Act, 1951 (for short the 'Act') is directed against the judgment and order dated 15th January, 2008, rendered by the High Court of Uttaranchal at Nainital in Writ Petition No. 03 of 2007 (MIS). By the impugned order, the ... High Court, upholding the preliminary objection raised by the A first respondent, has dismissed the election petition mainly on the ground that It did not comply with the mandatory requirement of furnishing material facts so as to disclose cause of action and was not supported by an affidavit in the prescribed form. B 2. Election to the State Legislative Assembly of Uttaranchal (now Uttarakhand) was held on 21st February, 2007. The results were declared on 27th February, 2007.

The first - support of the allegation of corrupt practices, is an incurable and fatal defect and, therefore, the election petition was liable to be rejected on that ground as well. Aggrieved, the election petitioner is before us in this appeal. 5. In spite of service, the first respondent - the elected candidate has not entered appearance. Therefore, we heard learned counsel appearing on behalf of the election petitioner. "' 6. It was submitted by learned counsel for the election petitioner that the High Court has committed an error of law as t well as of procedure in entertaining first respondent's application and dismissing the election petition at the threshold. It was contended that the question whether "material facts", as contemplated in Section 83 of the Act, had been stated or not, cannot be decided without providing an opportunity to the election petitioner to prove his case upon trial. Learned counsel \..

argued that if an election petition is rejected at the threshold on account of non-compliance with Section 83 of the Ad, it would amount to reading into Section 86 an additional ground 1. 2000 (B) sec 191 ~ ~ ~ for dismissal of the election petition which cannot be permitted "' in law. Relying on the Handbook for Returning Officers issued by the Election Commission of India for the guidance of the Returning Officers in the conduct of elections, learned counsel • submitted that the instructions so issued are binding on the Returning Officers and, therefore, having obtained the specimen signatures of the appellant and his election agent, it was obligatory on the part of the Returning Officer to circulate these specimen signatures to all the Presiding Officers in the prescribed performa in terms of Para 12 of Chapter VII of the >-said Handbook. It was contended that this omission on the part of the Returning Officer had materially affected the election result.

However, the learned counsel fairly conceded that since the election petitioner did not file ttie affidavit as required under proviso to sub-section (1) of Section 83 of the Act, he was not pressing the ground pertaining to corrupt practice. Therefore, the issue surviving for consideration is only in relation to alleged 'f violation of Section 100(1)(d)(iv) of the Act. ... , 7. Before examining the merits of the issues raised on ? " ) behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath vs. Jaswant Singh 2 and Ors. Speaking for the Constitution Bench, Mehr Chand Mahajan, C. J. , had said that the statutory requirement of election -( law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely statutory proceeding unknown to the common law and that Court possesses no common law power.

It is also well settled that \ the success of a candidate who has won at an election should Jnot be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of 2. [1954] S. C. R 892 ' ,_ . , that law or by indulging in corrupt practices, as enumerated in the Act. 8. In this backdrop, we may now turn to the procedural I provisions in the Act insofar as they are relevant for our i( purpose:- "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 the dates of their election are -: different, the later of those two dates. Explanation. -ln 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. * * * * * (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned .... in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. 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 J, (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 petiti_on. 86. Trial of election petitions.

-(1) The High' Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation. -An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been , assigned by the Chief Justice for the trial of election ; petitions under sub-section (2) of section BOA. --: (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of thel"! l shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and ..

, subject to any order as to security for costs which may be A made by the High Court, be entitled to be joined as a respondent. Explanation. -For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to B commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and c otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a D corrupt practice not previously alleged in the petition.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its E conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. ;> 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 the election, insofar as it concerned the returned candidate, was materially affected. As already stated, l \. in the present case, the allegation of the election petitioner is that the Returning Officer failed to circulate the attested signatures of his election agent to various polling stations and, therefore, failed to comply with para 12 of Chapter VII of the Handbook for Returning Officers.

The pleadings in the election petition, in relation to grounds (i) ana (ii), extracted in para 2 above, were as under: "11. That due to aforesaid inaction of the Returning Officer the polling agent of the petitioner was not permitted to function till 3. 00 P. M. by which time more than 80% polling was over. This inaction on the part of Returning Officer materially affected the election as almost all other polling agents of the petitioner working in other polling stations got confused and supporters of the petitioner either returned back or voted for congress candidate. 12. That the Returning Officer was duty bound to send required Praroop of the petitioner and his agent's signature one day before the day of e. lection which he did not do. Due to his inaction of the Returning Officer the election of 13 Laxman Chowk Legislative Assembly Constituency was materially affected. " 21.

There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning .. Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the aforeextracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the ele~tion petition.

What is stated in the preceding paragraphs, as can be noticed from grounds (i) and (ii) reproduced above, is that by the time specimen A, signature of the polling agent were circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being "material facts" as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling.

It needs little reiteration that for purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due 0 to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition. In our judgment, therefore, the Election Tribunal/High Court was justified in coming to the conclusion that statement of material facts in the election petition was completely lacking and the petitkm was liable to be rejected at the threshold on that I ground. We have, therefore, no hesitation in upholding the view taken by the High Court. 22. Consequently, this appeal, being devoid of any merit, fails and is dismissed accordingly. Since the first respondent remained unrepresented, there will be no order as to costs. R. P. Appeal dismissed.