V.NARAYANASWAMY v. C.P. THIRUNAVUKKARASU

Citation: [2000] 1 S.C.R. 292

Court: Supreme Court of India

Bench: A.S. ANAND, D.P. WADHWA, S. RAJENDRA BABU

Judgment text

() V. NARAYANASWAMY v. C. P. THIRlJNAVLKKARASU JANt:ARY lY, 2000 8 [DR. A. S. ANAND, C. J. , D. P. WADHWA A~D S. RAJE! '. DRA BABU, JJ. ] Representation of the People Act, 19S1 : Sections 123U)(B) & (2), JOO(l)(b) & (d) and 79(d). Election--Corrnpt practice-Bribery and undue influenc~lection to Rajya Sabha-Allegation that MLAs belonging to a political party other than the election petitioner's were entertained in five Mar hotels by the Chief Ministef'-The Chief Minister belonged to the returned candidate's political parf>--No allegations that the election petitioner was prevented from meeting any ofthose MLAs-Further allegarion that Government appointed Chainnen for five State-owned Corporations after the commencement of the election proces~--But none of the nominees belonged to the election petitioner's party-Held: In the circumstances ofthe case, allegation ofbribery and undue influence not established.

Section 83(J,(c}- Election-Election petition-Affidavit-Verification o:f Held : Has to confonn not only to the fonn pre,cribed in substance but also must contain particulars as· required by RuleJ"-()therwise petition is liable to be rejected at the threshold--Conduct of Election Rules, 1961, R. 94-A. Sections 81, 83 and 86-Election-Election petition-Pleading~-Re quirements of-Held : Cause of action must be disclosed-The court cannot dissect pleadings into several parts and consider whether each one of them discloses a cause of action--Petition has to be considered as· a whole-There cannot be a partial rejection of the petition. Sections 81 and 83-Election-Election petition--Comtptpractice-Requirement~-Held : Petition must be l·uppurted by affidavit which should disclose source of infonnation- -Petitioner must state which allegations are true to his knowledge and which to his belief-Allegation must be clearly and ' '-" ' • V. NARAYANASWAMY v. C. P.

TIIIRUNAVUKKARASU 293 precisely stated-It should not be open to two equally possible inferences-It has to be specifically alleged that the comcpt practice is committed with the consent of the returned candidate and that a particular electoral right o{ person is ajfected. Sections 81, 83(1)(c) and 86-Election-Election petitio11- -Material facts and material particulars-Difference between-Held: Failure to plead material facts is fatal to the election petition-Whereas absence of material particulars can be cured subsequently-But despite every opportunity to supply the material particulars the petitioner has not done so, the petition has to be rejected-However, no duty is cast on the High Court to direct suo motzt the furnishing of better particulars-In the circumstances of the case, the petition lacked material facts, material particulars, was defective in verification and the affidavit not in the fonn prescribed. Hence, petition liable to be rejected-Code of Civil Procedure, 1908, Or.

6 R. 16 and Or. 7 R. 11. Doctrines : Doctrine of Substantial Compliance-Doctrine of Curability-Discussed. The appellant-defeated candidate filed an election petition before the High Court challenging the election of the respondent-returned candidate to the Rajya Sabha. The appellant alleged that the election of the respon· dent was vitiated due to corrupt practice within the meaning of Section 123(1)(B)(b) and Section lllO(l)(d) of the Representation of the People Act, 1951 committed by the respondent, his agents and other persons with the consent of the respondent. The appellant alleged the following corrupt practices committed by the respondent :· 1. The respondent was proposed by the then Chief Minister belong· ing to the respondent's political party. For the second set of application the name of the respondent was proposed by the Minister in the Govern· ment of the Union Territory.

The proposals were seconded respectively by Deputy Sp~aker and Parliamentary Secretary to the Chief Minister. All these four persons acted as agents for the respondent in the election. 2. After the commencement of the election process the Government of the Vnion Territory announced appointment of Chairmen for five ' ,. ) I 294 SUPRi:'ME COURT REPORTS [2000) l S. C. R. State-owned Corporations but none of the nominees wets from the appellant's party which amounted to exercise of undue influence to secure the votes of the rtlLAs, particularly the MLAs who were nominated as ,---- Chairmen. I' I I I' 3. After the date of the dection was fixed tlte appellant wanted to ' ' meet all the MLAs but the MLAs other than the MLAs of the appellant's party were entertained in five star hotels by the Chief Minister. 4.

The Minister who had proposed the name of the respondent took the Deputy Speaker and the Parliamentary Secretary to the Chief Minister in a Government vehicle to Goa and made to stay in Government Guest House and were entertained there at Government e"Pense as a reward for voting in favour of the respondent. 5. Another agent of the respondent, who was an MLA and Govern· ment whip belonging to the respondent's party, also influenced and MLA belonging to a political party other than the appellant's by keeping him at a hotel and then taking him to several places at Government expense. In the verification to the election petition the appellant stated "that what all stated in tine above paragraphs l to 15 are all true to the best of my knowledge, information and belief.

In the affidavit the appellant stated as follows :· (a) "that the statements made in paragraphs 7 to 10 of the accom· panying Election Petition about the commission of the corrupt practice of gratification as a motive or reward for securing votes and undue influence as referred under Section 123(1) (B) and (2) of the Representation of the People Act, 1951 and the particulars of such corrupt practice mentioned in paragraphs 7 to 10 of the same petition are true to my knowledge; (b) that the statements made in par11graphs 7 to 10 of the accom· panying Election Petition about the commission of the corrupt pr.

ictice of gratification as a motive or reward for securing votes and undue influence as referred under Section 123(1)(B) and (2) of the Representation of the People Act, 1951 and the particulars of such corrupt practice mentioned in paragraphs 7 to 11 of the same petition are true to my information; (c) that the statements made in paragraph 11 of the accompanying Election Petition about the commission of corrupt practice 1Jf gratification V. NARAYANASWAMYv. C. P. TllIRUNAVUKKARASU 295 as a motive or reward for securing votes and undue influence as referred under Section 123(1)(B) and (2) of the Representation of the People Act, 1951 and the particulars of such corrupt practice mentioned in paragrapli 11 of the same petition are true to my information.

" In the counter-affidavit filed by the respondent he denied all the allegations made against him and submitted that the allegations of corrupt practices alleged in the election petition were vague and unspecific and bereft of material facts and particulars. It was also submitted that the election petition be dismissed under Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure, 1908. On the same day the respondent also filed a miscellaneous application praying for striking out certain paragraplis of the election petition on the ground that material facts were not stated in the election petition and prayed for dismissal of the election petition on that score. The respondent also raised objection to the validity of the verification to the petition and to the affidavit in support of the allegations of corrupt prdctices. The appellant filed a rejoinder to the counter-affidavit and reply to the miscellaneous application reaffirming what he had said in the election petition.

The appellant said that the election petition was duly verified as per law and that the affidavit was legally correct. The High Court dismissed the election petition without holding any trial. Hence this appeal. Dismissing the appeal, this Court HELD : 1. 1. An election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petitition the averments in the petition should be assumed to be true and the court has to find out v;bether these averments dbclose a cause of actfon or a triable issue as such. Sections 81, 83(1)(c) and 86 of the Representation of the People Act, 1951 read with Rule 94-A of the Conduct of Election Rules, 1961 and Form 25 are to be read conjointly as an integral scheme.

When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. The appellant had every opportunity to supply the material particulars, which admittedly were lacking and also to amend the verificatio11 and to file the affidavit in the form prescribed hut for the reaso11s best known to him, he failed to do so. (320-B·C] 1. 2. There is a difference bet\'l'ee11 "material facts" and •material particulars". While the failure to plead material facts is fatal to the election petitio11 the absence of material particulars can be cured at a later stage by an appropriatt amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stattd in the election petitio11 vide Sectio11 83(1)(a). Then under Sectio11 83(l)(b) the election petition must co11tain full particulars of any corrupt practice.

T:1ese particulars are obviously different from material facts on which the petition is fo11nded. (320-D] 2. 1. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose bis source of information in respect of the commissio11 of corrupt practice. He must state which of the alltgations are true to bis lmowledge and which to bis belief 0111 information received and believed by him to be true. It is not the form of the aftidavit but its substance that matters. To plead corrupt practice as contemplated by law it bas to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning.

Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unswom allegation could have no legal existence and the court could not take cognizance thereof. The charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential t! iat the particulars of the charge ofallegations are clearly and precisely stated in the petition. (320-F-H; 321-A] 2. 2. It is the violation of the provisions of Section 81 of the Act, which can attract the application of the doctrine of substantial compliance.

The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles co11tained in the Code of Civil Procedure, 1! }08. N1111-compliance with the provisions V. NARAYANASWA. \1Y v. C. P.. THlRUNAVUKKARASU 297 of Sectio11 83 may lead to dismissal of the petitio11 if the catter falls within the scop: 11f Order 6 Rule 16 and Order 7, Rule 11 of the CPC. [321-B] 2. 3. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verificatio11 is correct and affidavit in the form prescribed does not suffer from any defect, the allegations of corrupt practice cannot be inquired and tried at all. In such a case the petitio11 has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings.

Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dissect the pleadings into several parts and co11sider whether ellch one of them discloses a cause of action. The petition has to be considered as a lrhole. There cannot be a partial rejection of the petition. [321-C-E] D. Ramachandran v. R. V. Janakiraman, [1999) 3 SCC 267, referred to. 3. In a petition on the allegation of corrupt practices cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based 011 the allegatio11s of corrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter. If proved not only that the candidate suffers ignominy, he also snffers disqualilicatiun from stnnding for election for a period that may extend to six years. Reference in this connection may be made to Section 8-A lbf the Act.

It was for this purpose that proviso to Section 83(1) was inserted by Act 4 of 1961 (w. e. r. 20-9-1961) requiring filing of the affidavit in the prescribed form where there are allegations of currupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affid. avit it has to conform not only to the form prescribed in substanc. : but ltas also to contain particulars as required by the Rules. [322-0-E; 324-A] 4. The High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo motu the furnishing of better p particulars and requiring amendment of the petition for the purpose of verification and filing of proper affidalit. In a matter of this !

tind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to tile a petition in full compliance with the provisions of law is on the petitioner. [323-H; 324-A] Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, AIR (1955) SC 610, followed. Ch. Subbarao v. Member, Election Tribuna4 Hyderabad, [19114] 6 SCR 213; Murarka Radhey Shyam Ram Kumar v. Roop Singh Rat/tore, [1964] 3 SCR 573; Dau/at Ram Chauhan v. Anand Shanna, AIR [1984] SC 621; FA. Sapa v. Singora, [1991] 3 SCC 375; KM. Mani v. PJ. Anthony, (1979] 2 SCC 221; Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, Ant (1995) SC 2284; T. M Jacob v. C. Pou/ose, [1999] 4 SCC 274; Dr. Shipra v. Shanti Lal Kholwal, (1996] 5 SCC 181; R. P. Moidutty v. P. T. Kunju Mohammad, JT (1999) 7 SC 457; L. R. Shivaramagowda v. T. M. Chandrashekar, [1999] 1 SCC 666; H. D. Revanna v. G. Puttaswamy Gowda, [1999] 2 SCC 217 and Dharamvir v. Amar Singh, [1996] 3 SCC 158, relied on. Sampat N. Balkrishna v.

George Fernandez, [1969] 3 SCC 238; Azhar Hussain v. Rajiv Gandh~ [1986] 2 SCR 782; A. S. Subbaraj v. M. Muthiah, 5 ELR 21 and Ba/wan Singh v. Lakshmi Narain, AIR (1960) SC 770, cited. 5. 1. The appellant alll! ged that the MLAs were '! tept" in a hotel but he has not given particulars as to what be meant by the word "kept". "Kept" is certainly not "confined". What entertainment wa~ provided to those MLAs in various places has also not been specified. It is not his case that he was prevented in any way from meeting any of those MLAs. It was a material fact to allege which he failed to do so. This is apart from the fact that the material particulars as to when the MLAs were taken to the hotel and to other places, the names of the MLAs and names of the hotels in these places, who too! t them there, who paid their bills and who brought them bac! t, are lacking. The appellant does not show as to why he could m1t mett all these MLAs prior to the election.

Apart from one independent MLA other MLAs belonged to various other political parties. Rather it can be assumed that the MLAs voted according to their political affiliations. Ithas come on record t! tat out of a total number of29 MLAs \'/ho constituted the Legislative Assembly, one political party ltad taltcn the decision not to v11te for any candidate and that is how the two MLAs of this party did not V. NARAYANASWAMYv. C. P. THIRUNAVUKKARASU 299 participate in the election and total votes polled were 27. There was only one independent MLA and his casting of vote eitlner vmy would not have at all affected the result of the election considering the numlnr of votes polled by each 11f the candidates. It is not the case of the appellant that he was barred fr11m meetin. ~ any of the MLAs in order to s11licit their votes. There is no e. llegation if tlitre is any complaint by any MLA that he was !

tept out of circubltion by respondent 11r with bis consent by any other person for the purpose 11r not heinc accessible to the appellant. [324-C-D] 5. 2. The appellant in his petition stated that the Minister, the Deputy Speaker and the Parliamentary Secretary to the Chief Minister were the agents of the respondent. It is furtl1er alleged that one of them to11! t the 11ther tv•o to Goa with a view to influencing them to get tlteir votes in favour of the respondent. But it is paradoxical where 011e agent influences the other agent to vote in a particular way. It certainly could not be a corrupt practice. Regarding the allegation relating to the MLA who was Government whip it is not the case ofthe appellant thatwhat the said MLA did was with the consent of the respondent or any of his agent or othenvise. This is a material fact, which the appellant failed to allege.

Lastly, the notification regarding to the appoinbnents of Chairmen to various Corp11rati1111s came out much later after the results 'l'l'2re declared. It is correct that none of tile nominees belonged to the appellant's party. [324-H; 325-A·C] Therefore, the e! 1ittlon petltl11n not only lt~clted the material fccts, It 11foo lec! ted tlotcrlcl p::irt! cul111"11, \ atisfied that the plaintiff WJS prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the C nd (d) that in all other respects the election w~s free from any corrupt prnctice on the p::n of the candid~tc or any of his agents, then the High Coun may decide that the election of the returned candidate is not void. " V. NARAYANASWAMY v. C. P. 'fHtRLNAVl:KKARASL [lJ. P. WADHWA, J. J 303 3. After the date of the election was fixed for October 3, 1997 the appellant wanted to meet all the MLAs at Pondicherry.

However, MLAs belonging to DMK, Tamil Manila Congress, Communist Party of lndia, Pattali Makkel Katchi, Janata Dal and also an independent MLA were not available in Pondicherry. The MLAs were taken out of Pondicherry, entertained there and were brought back to Pondicherry on Octobt:r 2, 1997. Similarly exet:pt two Ministers, Mr. S. P. Sivakumar and Mr. R. Viswanathan, no other Minister was available in Pondicherry. The Chief Minister Mr. R. V. Janakiraman took the MLAs and kept them at Hotel Ashok, Pondicherry by providing all facilities to them from Septt:mber 25, 1997 tu September 27, 1997. Thereafter the MLAs wen: shifted tu Mahabalipuram and entertained in five star hotels. Complaint to this effoct was sent by the appellart to the Election Commission on Octobcr 2, 1997. (para 7 of thc election pctition) 4. Mr. C. Jayakumar, who had proposed the name of the respondent, took Mr. Kandaswamy and Mr. K. Rajasekheran to Goa with a vicw to inlluence them.

They were taken thcre in a Government vehicle bcaring registration No. PY-01-C-2345 and PY-01-0-9289 on September 27, 1998, returning on October 1, 1997. In Goa all the three stayed in Government Guest House. Entire expenses for tht:ir travel and stay at Goa wcre met by the Govcrnmcnt of Pondicherry. Both Mr. Kandaswamy and Mr. Rajasekheran were taken to Goa and entertained there as a reward for voting in favour of the respondent. They Were influenced to c;ist their votes in favour of the respondent. This conduct of Mr. C. Jayakumor, who was lleent of the respondent, amounted to corrupt pr e trial of the petition, but shall not allow any amendment of the petition which wilt ha>e the effect of introducing particular> of a corrupt pr&ctice not previously alleged in the petition. (6) ........ (7) ........ 312 SUPREME COVRT REPORTS (20CO] l S. C. R. founded and are intended to afford to the returned candidate an adequate opportunity to effectivdy meet with such an allegation.

The underlying idea in requiring the election petitioner to set out in a concise manner all the 'material facts' as well as the •full particulars' where commission of corrupt practice is complained of is to delineak the scope, ambit and limits of the inquiry at the trial of the election pttition. " Then the Court held as under : "From the text of the relevant provisions of the R. P. Act, Rule 94-A and Form 25 as wdl as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a ddect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the pt::tition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or alleg RTS [2CCO] l s. e. R.

"It is well settled that in all casts of preliminary objection, tht: test lo st:t: whetht:r any of the rdids prayt:d for could be granted to the appdlant if the averments 'llade in the pi:tition are proved to be true. For the purpose of con,idering a prdiminary objt:ctiun, the avermi:nl5 in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable is&ue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter. " The Court said that undt:r Order 7, Rule 11 of the Codt: the court is to rejt:ct the plaint wht:rt: it dot:s not disclose the cause of action. But there is no question of striking out any portion of the pleadings under this Rule. The Court said : "The application fi! t:d by the first respondt:nl in OA No.

36 of 1997 is on the footing that the averments in the ekction petition did not contain the matt:rial facts giving rise to a triablt: issue or disclosing a caust: of action. Laying stress upon the provisions of Order 7 Rule 11 (a), learned Srnior Counsel for the first respondent took us through the cntir~ election petition and submitted that the avcrmcnts then. :in do not disclose a cause of action. On a .. reading of the petition, wt: do not find it possible to agree with him. The election pt:tition as such docs disclose a caru. e of action which if unrebulted could void the ckction and the provisions of Order 7 Rule 11(a) CPC cannot therefore be invoked in this ca&e. Tht:re is no merit in the contel'tion that some tu tht: allegations are bereft of matt:rial facts and as such do not disclose a cause of action. ll i& elementary that under Order 7 Rule ll(a) CPC, the court cannot dissect the pleading into several parts and consider whetht:r .

:ach one of them discloses a caust: of ai:tion. l:nder the Rule:, thtre cannot be a partial rejection of the plaint or pt:tition. " The cast: of Dr. Shipra (Smt. ) and Others v. Shanti Lal Klto/wal and Others, [1990[ 5 sec 181, was considered by the Constitution Bt:nch in the case of T. M. Jacob V. c. Pou/ose and Others, (1999] 4 sec 274. In Dr. Shipra's case a prdiminary objection was raised that copy of the notice together with the affidavit in support of the election petition on the allegation of corrupt practices did not contain tht: wrification by the Notary and hence the elt:ction petition was not maintainable in accordance V. NARA\A~ASWAMY '· C. P. THIRLNAVI ,~RAS\' p. P. WADHWAJ. J 3l5 with Section 83(1)(c) of the Act. The objection was uphdd by the High Court and appeal against that was dismissed by this Court. The question thus raised before this Court for its consideration was whether the copy of the dection p..

:tition accompanicd by supporting affidavit served nn the rcspondrnt al1•ng with form 25 pr~"cribccd under Ruh. : 94-A of th oon as may be after such order takes effect. hy such authority as the Central Government may specif)• in this beh::lf, to the President for determin•tion of the question as to whether such person sh•dl 1e disqualitJed i:iOd. if so, \>r . what period : Provided that the r~riud iur which any pen. on may be di,quali! ied under this sub-section shall in no c on who stands disqualified under section BA of this Act as it stood immediate! ) before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975). may, if the period of such disquali! 1cation has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period. (3) Before giving h1~ ded~ion on any que! o;tio11 mention in suh·· section (1) or on . iny petition suhmitted under suh-.

;ection (2), the President shall obtain the opinllln of the Election C. omn1is~;inn on such question or petition and shall act according to such opinion. V. '<ARAYA'. 'IASWAMY v. C' P. TH! Rl:NAVLKKARASL ID P. WADHWA JI 323 allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become as affidavit. To be an atlidavit it has to conform not only to form prescribt:d in substance but has also to contain particulars as required by the Rules. It is contended by Mr. Bhandart: that all the material facts have been stated in the election petition and that for lack of material particulars, the petition could not have been thrown out at the threshold. He said opportunity should have been giwn to the appellant to supply the material particulars. It is really of strange proposition to advance.

Till the date of the impugned judgment, appellant had persisted that the petition did not lack material particulars and that the verification was in accordance with the code and the affidavit in support of the corrupt practice in the form prescribed. Admittedly, the petition lacked material particulars, verification to the petition was not in accordance with the Code and the affidavit did not conform to the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars and that th. : verification to the petition and the affidavit were not in accordance; with law. This was repeated in the miscellaneous application (Original Application No. 298/98). In the counter affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and termed the objections raised by the respondent as irrelevant.

It is not that the appellant did not have opportunity to correct his mistake whid1 he could have easily done in the rejoinder filed by him to the counter affidavit of the respondent or even his reply to the misce! laneous application (O. A. No 298i98). He had every opportunity even at that stage to supply the material particulars which admittedly were lac~ ing and also to amt:nd the verification and to file the affidavit in the form prescribed but for the n:asons best known to him, he failed to do so. The existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those, the Court has jurisdiction to dismiss the petition.

High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to requin: amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo moto the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a l 324 SUPREMf COURT REPORTS [2000) 1 S. C. R. matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioner. (See in this connection Constitution Bench decision in Bhikaji Keshao Joshi & Anr. v. Brijlal Na11dlal Biyani & Ors. , AIR (1955) SC 610 = (1955] 2 SCR 428 (444).

Grievance of the apptllant is that he wanted to meet the MLAs other than MLAs of the Congress party to which he belonged but those MLAs were kept first in Hotel Ashoka at Pondicherry and then taken to five star hotels at Mahabalipuram. Appellant alltged that MLAs were "kept" in Hotel Ashoka but he has not given particulars as to what he meant by the word ''kept". "Kept" is certainly not "confined". What entertainment was provided to those MLAs in Hotel Ashoka, Pondicherry or in five star hotels in Mahabalipuram has also not been specified. It is not his case that he was prevented in any way from meeting any of those MLAs. It wa~ a material fact to allege which he failed to do so. This is apart from the fact that the material particulars as to when the MLAs were taken to Hotel Ashoka and to other places, the names of the MLAs and names of the hotels in Mahabalipuram, who took them there, who paid their bills and who brought them back are lacking.

Appellant does not show as to why he could not meet all those MLAs on October 2, 1997. Apart from one Independent MLA other MLAs belonged to various other political parties like DMK, TMC, CPI, PMK and Janata Dal. Rather it can be assumed that the MLAs voted according to their political affiliations. It has come on record that out of total number of 29 MLAs who constituted Legislative Assembly of Pondicherry, two belonged to AIDMK, another political party. AIDMK had taken decision not to vote for any candidate and that is how the two MLAs of this party did not participate in the election and total votes polled were 27. There was only one independent MLA and his casting of vote either way would not have at all affected the result of the election considering the number of votes poUed by each of the candidates. It is not the case of the appellant that he was barred from meeting any of the MLAs in order to solicit their votes.

There is no allegation if there is any complaint by any MLA that he was kept out of circulation by respondent or with his COl! lient by any other person for the purpose of not being accessible to the appdlant. Appellant in his petition said that whtn C. Jayakumar, Miniskr and K. Kandasamy, Deputy Speaker and K. Rajasekheran, Parliamentary V. NARAYANASWA. \tY •. C. P. THIRl'? ;AVL'KKARASl ;o. P WADHWA,J. J 325 Secretary to the Chief Minister, were the agents of the respondent. He then alleged that C. Jayakumar took Kandasamy and Rajasekheran to Goa with a view to influence them to get their votes in favour to the respondent,is it not paradoxical where om; agent influences the other agent to vote in a particular way? It certainly could not be a corrupt practice. Appellant then alleged that N. Kesav, MLA bdonging to DMK and also a 8 Government whip kt:pt independent MLA Rajaraman first in Hotel Ashoka, Pondicherry and then took them to Kova!

am, Chinglcput District, then to Tirupathi in a Government vehicle and then brought back to Pondicherry on October 2, 1997. It is not the case of the appellant thut N. Kesav did so with the consent of the respondtont or any of his agent or otherwise. This is a material fact which the appellant failed to allege. Lastly, notification regarding appointments of Chairmen to various committees came out much later after the resultb were declared. It is correct that none of the nominees belonged to the Congress party. It will be thus seen that election petition not only lacked the material facts, it lacked material particulars, defective wrification and the affidavit filed was not in the form prescribed. Moreover, ingredit:nts of corrupt practices, as defined in Section 123( l)(B) and 123(2) of the Act are also lacking.

It is also not the case of the appellant that any MLA whom the appellant could not meet, received any gratification, as defined, whether as a motive or a reward for voting or refraining from voting, or there was any inducement or attempt to induce any such MLA to vote or refrain from voting. Also it is not the case of the appellant that any undue influence was exercised with the free exercise of any electoral right of any ~ILA which right, as noted above, has been defined in clause (d) of Section 79 of the Act. There is no allegation if any particular MLA was induced to vote or not to vote in a particular way because he was entertained or otherwise. The aUegation is that appellant himsdf could not meet the MLAs and he' believed if h;;: had been given a chance to meet them he would have influenced their vote in his favour and against their party of affiliations. There is no allegation that the MLAs were prevented or influenced from freely exercising their electoral right.

As stated earlier appellant did not show as to why he could not meet the MLAs on October 2, 1997 when they were available in Pondicherry. Material fact must be that the appellant was prevented from meeting the MLAs which he did not allege and as to how he was so prevented would constitute material particulars. A The election petition rt! ad as a whole did not disclose any cause of action or triable issue. Considering the facts of the case and th. : principles of law applicable, the election petition was rightly dismissed by the High Court in limine. The appeal is accordingly dismissed with costs. B v. s. s. Appeal dismissed.