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CASE NO.:

Appeal (civil) 845 of 2005

PETITIONER:

HARKIRAT SINGH

RESPONDENT:

AMRINDER SINGH

DATE OF JUDGMENT: 16/12/2005

BENCH:

Y.K. Sabharwal, C.K. Thakker & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

C.K. THAKKER, J.

The present appeal is directed against the judgment and order

dated 3rd November, 2004 passed by the High Court of Punjab &

Haryana in Election Petition No. 26 of 2002. By the said Order, the

High Court dismissed the Election Petition filed by the appellant-

petitioner upholding preliminary objection raised by the respondent

that the petitioner had failed to disclose material facts as to corrupt

practice constituting the cause of action in the election petition.

To appreciate the controversy raised in the present appeal, few

relevant facts may be stated. On December 26, 2001, election for

constitution of Punjab Legislative Assembly was announced. On

January 16, 2002, Hon'ble the President of India issued a notification

calling upon the electors in the State of Punjab to elect their

representatives for Punjab Vidhan Sabha. Various stages of election

were fixed. As per the notification, January 23, 2002 was the last date

for filing nominations by candidates aspiring to be elected to Punjab

Vidhan Sabha. Scrutiny of nomination papers was fixed as January

24, 2002 and the last date of withdrawal of nomination was January

28, 2002. Polling was to take place on February 13, 2002 and

February 24, 2002 was the date of the counting of votes and of

declaration of result.

The respondent herein filed his nomination from 76, Patiala

Town Assembly Constituency as the candidate nominated by

Congress (I) Party. The respondent was declared as elected. He was

also elected as the leader of the Party and became the Chief Minister

of Punjab.

The appellant herein-petitioner before the High Court- was an

elector in the constituency from which the respondent contested the

election. The petitioner filed an Election Petition in the High Court

under Section 81 of the Representation of the People Act, 1951

(hereinafter referred to as 'the Act') questioning the election of the

respondent to the Punjab Legislative Assembly from 76, Patiala Town

Assembly Constituency on the ground of corrupt practice as detailed

in the Election Petition. A prayer was, therefore, made to declare the

election of the respondent void and for issuing appropriate

consequential directions.

In the Election Petition, it was alleged by the petitioner that the

respondent had committed 'corrupt practice' as enumerated in Section

123 of the Act. The particulars of corrupt practices committed by the

respondent were mentioned by the petitioner in the petition. In paras 4

and 5 of the Election Petition, the petitioner stated that one Bharat

Inder Singh Chahal was a Government Servant holding Class I

gazetted post as Joint Director, Information & Public Relations

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Department, Punjab who helped the respondent immensely during the

election campaign of the respondent and despite his being holder of a

post under the State Government, had actively been organizing,

conducting and participating personally in the press conferences

addressed by the respondent for the furtherance of respondent's

election prospects. Particulars of corrupt practices committed by the

respondent had also been stated. It was asserted that on January 29,

2002, Mr. Chahal organized a Press Conference for the respondent at

New Moti Bagh Palace, Patiala along with the respondent for

enhancing the election prospects of the latter. An audio-video cassette

containing about 12 minutes clipping was recorded which news

appeared in English dailies 'Tribune', 'Indian Express' and 'Times of

India'. According to the petitioner, he was able to procure a copy of

the cassette from one Mr. Jagdeep Singh Chowhan without any

manipulation, dubbing or interpolation.

It was also stated that Mr. G.S. Cheema, Chief Electoral

Officer, Punjab during media briefing on 4th February, 2002 at the

office of the Chief Electoral Officer in Sector No.17, Chandigarh

disclosed that Mr. Chahal had actively participated in the election

process. The Election Commission, therefore, directed Secretary,

Punjab Information & Public Relations to take disciplinary action

against Mr. Chahal for violating the code of conduct and for actively

participating in Congress' election campaign. Likewise Mrs. Usha R.

Sharma, Additional Chief Electoral Officer, during media briefing on

February 6, 2002 stated that the Election Commission of India had

pulled up the Punjab Government and asked the Chief Secretary of

Punjab to look into the matter as to why action had not been initiated

against Mr. Chahal for the alleged violation of the Election Code and

for assisting the respondent. According to the petitioner, this had gone

long way to show that Mr. Chahal actively participated "to the

knowledge of the respondent and with the consent of the respondent"

for the furtherance of his election prospects in violation of the

provisions of Section 123 of the Act. The Secretary, Information &

Public Relations, Government of Punjab issued a show cause notice

to Mr. Chahal over his reported work for the Congress candidate. Mr.

Cheema had also written to Mr. N.K. Arora, Chief Secretary, Punjab

seeking action against Mr. Chahal for alleged partisan role and for his

misconduct. Mrs. Usha R. Sharma further disclosed that a complaint

filed by one Mr. J.S. Chowhan had been forwarded to the Election

Commission of India as also to the Secretary, Information & Public

Relations, Punjab recommending that action should be taken against

Mr. Chahal as complaint had been prima facie established. A

Committee was constituted to look into the audio-video cassette and

to examine the role of Mr. Chahal. According to the petitioner, the

Committee of Information & Public Relations Department submitted

a report that Mr. Chahal was present at the Press Conference of the

respondent. The Committee allowed Mr. Chahal to see the cassette

following the principles of natural justice and asked him to submit his

reply by February 8, 2002 explaining his conduct. The Committee

forwarded the report to the Chief Electoral Officer, Punjab as also to

the Election Commission of India. The above facts were disclosed by

Mr. Cheema, Chief Electoral Officer in a media briefing on February

7, 2002 at Chief Electoral Officer's office at Chandigarh.

On February 8, 2002, the Secretary, Information & Public

Relations Department, Punjab recommended to the Cabinet Minister

for Information & Public Relations Department to issue charge-sheet

to Mr. Chahal for a major penalty on his having worked actively for

the election campaign of the Chief of the Punjab Pradesh Congress

Committee-respondent herein.

In para 6 of the petition, the petitioner stated that Mr. Chahal

played a dominant, significant and active role during the election

campaign of the respondent which fact was further corroborated from

the fact that Mr. Chahal was suitably rewarded for herculean efforts

put up by him with his appointment on February 28, 2002 as Advisor

to the Chief Minister-respondent herein.

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It was stated that the respondent took oath as Chief Minister of

Punjab on February 27, 2002. He accepted the resignation of Mr.

Chahal as Joint Director, Public Relations Department, Punjab on

February 28, 2002. On the same day, the respondent appointed Mr.

Chahal as 'Advisor to the Chief Minister' and an appointment letter

was issued. In the 'Indian Express' dated March 1, 2002, it was

reported that Mr. Chahal's career in Public Relations Department was

marked by 'string of controversies' (para 7).

The petitioner, in the election petition, has also said about other

corrupt practices adopted by the respondent. In paras 8 and 9, it was

averred that the respondent had procured assistance of one Gurnam

Singh Mehra, Superintendent of Police, Patiala for furtherance of the

prospects of his election. The details of the corrupt practice had also

been specified in para 9 of the petition. It was said that Mr. Mehra

belonged to Kashyap Rajput community. Mr. Mehra organized a

function on January 26, 2002 in favour of Congress candidate for 76,

Patiala Town Assembly Constituency (of the respondent) which was

presided over by Smt. Preneet Kaur, Member of Parliament, Patiala

and wife of the respondent. The meeting was organized at Marriage

Palace near Railway Phatak No.22, Patiala. For the said meeting, Mr.

Mehra used the office of his newly created Mehra Biradri Social

Sangathan in which posters were distributed with a photograph of Mr.

Mehra as Superintendent of Police in police uniform describing the

respondent as 'Garibon Ka Massiha'. The name of the Sangathan was

shown at the bottom. Mr. Mehra thus canvassed for the respondent in

the said meeting. Those facts appeared as a news item in the English

edition of the 'Tribune' dated February 5, 2002.

According to the petitioner, the respondent also committed

corrupt practice by indirectly interfering with the free exercise of

electoral rights by projecting himself as the 'Maharaja of Patiala' in

the posters issued by the respondent and also by his supporters with

his consent.

Finally, the petitioner alleged that the respondent had incurred

expenses far more than the prescribed limit of Rs.6 lakhs under Rule

90 of the Conduct of Election Rules, 1961 (hereinafter referred to as

'the Rules') and maintained improper and incorrect accounts of the

expenditure incurred and thereby he violated the provisions of Section

77 of the Act. The respondent had not shown the expenses of Press

Conference held on January 29, 2002 at New Moti Bagh Palace,

Patiala or of the 'heavy tea' served at the said conference in his

election return (para 11).

On the basis of above allegations, the petitioner stated that the

election of respondent to 76, Patiala Town Assembly Constituency

was liable to be declared void under Section 100 of the Act. The

election petition was verified and was filed on April 10, 2002.

A reply in the form of written statement was filed by the

respondent controverting the averments made and denying the

allegations levelled by the petitioner in the election petition.

Preliminary objections were also raised by the respondent, inter alia,

contending that the election petition was liable to be dismissed as the

petitioner had failed to comply with the mandatory requirement of

filing an affidavit in Form 25 read with Rule 94-A of the Rules as

required by Section 83 of the Act. According to the respondent, the

affidavit was not legal and valid. An affidavit, under the Rules, was

required to be attested either on oath or on solemn affirmation. The

affidavit filed by the petitioner was neither sworn nor it was on

solemn affirmation. Both the expressions 'sworn' and 'solemn

affirmation' were mentioned mechanically. The affidavit thus did not

conform to the mandatory requirement of Form 25 read with Rule

94-A and the petition was liable to be dismissed on that ground.

It was also stated that the election petition did not contain

"material facts" much less "material particulars" of alleged corrupt

practices mentioned in the election petition. The so called allegations,

stated the respondent, were vague, bald, unnecessary, irrelevant,

frivolous and did not disclose any cause of action. The averments

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were intended to prejudice, embarrass and delay fair trial of the

election petition.

Paras 6 and 7 of the election petition were liable to be struck

off being unnecessary. The averments in those paras did not pertain to

the period from the date of filing of the nomination papers, had no

relevance and did not fall within the ambit and scope of Section 100

read with Section 123 of the Act. Contents of para 4 did not disclose

material facts but the language of Section 123(7)(a) of the Act had

been mechanically reproduced by the petitioner. According to the

respondent, para 4 did not contain material facts as to how and in

what manner the help of Mr. Chahal was sought or obtained for

furtherance of the election result of the respondent, in what form the

so called assistance was rendered and how it affected the electoral

rights of the voters of 76, Patiala Town Assembly Constituency. Para

5 similarly did not disclose material particulars required by law. The

reference to organizing, conducting and participating personally in

press conferences by Mr. Chahal addressed by the respondent was

vague, scandalous and frivolous. The contents failed to disclose

essential ingredients of corrupt practice as contemplated by Section

123(7)(a) of the Act. The so called press conference dated January 29,

2002 was organized and addressed by the respondent as President of

the Punjab Pradesh Congress Committee and it had absolutely no

connection with his election to 76, Patiala Town Assembly

Constituency. The respondent has also stated that it was not disclosed

by the petitioner as to who was the author of the audio-video cassette,

how the copy of the cassette came to the hands of Jagdeep Singh

Chowhan and how the said copy was free from any manipulation,

dubbing and interpolation particularly when the original audio-video

cassette was not on record. Even the transcript in English of the

cassette had not been produced.

Regarding assistance of Mr. Mehra, Superintendent of Police,

Patiala, it was contended by the respondent that in the absence of

basic ingredients of Section 123(7)(d) of the Act that the function

held on January 26, 2002 was with the consent of the respondent or

his election agent, there was nothing to show how it could connect the

respondent with the said function.

As to the allegation of respondent projecting himself as

'Maharaja of Patiala', it was stated that no such poster had been

placed on record nor the contents of the poster had been reproduced.

Thus, no material facts had come on record of undue influence.

Regarding election expenses, the averments were totally vague,

unnecessary and frivolous. The averments had been made with a view

to prejudice and embarrass, with the object of delaying fair trial of the

election petition. The provisions of Section 77 were not attracted.

On merits also, it was contended by the respondent that no

corrupt practice had been adopted by him and the allegations levelled

against him were incorrect. It was, therefore, submitted that the

election petition was liable to be dismissed.

A replication to the written statement of the respondent was

filed by the petitioner contending that the preliminary objections

raised by the respondent were incorrect and false. Regarding affidavit

and verification, it was stated that if the Court comes to the

conclusion that there were some defects in the affidavit, permission

may be granted to the petitioner to file a fresh affidavit. So far as

corrupt practices are concerned, according to the petitioner, material

facts and particulars had already been stated in the election petition.

The allegations were clear, precise and disclosed a cause of action.

The averments made in the election petition have been reiterated in

the replication by giving several instances. It was repeated that

corrupt practice had been adopted by the respondent. The election

petition was thus required to be allowed by setting aside the election

of the respondent.

On the basis of rival contentions of the parties, the High Court

framed nine issues. It was contended on behalf of the respondent that

the election petition was liable to be dismissed as preliminary

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objections raised by the respondent were well founded. The Court,

accordingly ordered to treat issue Nos. 5 to 8 as preliminary issues

which were as under:

5. Whether the election petition is liable to be dismissed

as the allegations of corrupt practice are not

supported by a valid and legal affidavit as mentioned

in preliminary objection No.1 and 2 of the written

statement? OPR

6. Whether the election petition lacks material facts and

particulars and discloses no cause of action as

mentioned in preliminary objection No.3 to 10 of the

written statement? OPR

7. Whether the election petition is liable to be dismissed

being incomplete as mentioned in para no.11 of the

preliminary objections of the written statement?

OPR

8. Whether the election petition is not verified as

required under Order 6 Rule 15 of C.P.C., if so its

effect? OPR

Issues 5 and 8 related to the affidavit and verification of

election petition. After considering the submissions of both the sides

and referring to the relevant provisions of law in the light of

decisions of this Court, the High Court held that the election petition

was not liable to be dismissed on the ground of defect, if any, in

verification and affidavit. Even if there was some defect, it was

'curable' and not fatal to the election petition. The Court also

observed that along with the replication, the petitioner had placed on

record an affidavit which was in conformity with the provisions of

Rule 94-A and From 25 appended to the Rules. The affidavit was

allowed to be placed on record without any objection by the other

side. The issues were thus decided in favour of the election petitioner.

So far as issues 6 and 7 are concerned, the Court was called

upon to consider whether the election petition lacked 'material facts'

and 'particulars' and did not disclose a cause of action and was liable

to be dismissed being incomplete as contended by the respondent.

The Court stated that it was well established that an election petition

was supposed to disclose all 'material facts' to constitute a complete

cause of action. According to the Court, an election petition should

contain concise statement of material facts and it was necessary 'to

disclose fullest possible particulars'. The Court stated that the

counsel cited several judgments showing the distinction between

'material facts' and 'material particulars'. Referring to a decision of

the Supreme Court in Hardwari Lal v. Kamal Singh, (1972) 1 SCC

214 : (1972) 2 SCR 742, the Court said that the material facts are

facts which if established would give the petitioner the relief asked

for. If the respondent would not appear, the Court would give verdict

in favour of the petitioner. The said view was reiterated by the Court

in subsequent cases also. Then referring to para 4 of the election

petition, the Court observed that the said para only contained

'reproduction of the wording of Section 123(7)(a) of the Act'. In the

opinion of the Court, therefore, para 4 of the petition could not be

treated as the statement of material facts regarding corrupt practice.

In respect of material facts and particulars given in para 5(i)

regarding corrupt practice adopted by the respondent, the Court

opined that though it had been stated that Mr. Chahal, a Gazetted

Officer of the State of Punjab had helped the respondent immensely

during his election and had actively been organizing and conducting

personally, press conferences addressed by the respondent for the

furtherance of his election prospects, no date, time and place of

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organizing any press conference had been mentioned by the

petitioner.

The Court then observed;

"Whether by the use of words actively organizing,

conducting and participating in press conferences

without any further detail will constitute a material fact,

which may lead towards formation of a complete cause

of action or not. This Court feels that the answer is in

the negative". (emphasis supplied)

The Court observed that in sub-para (ii) of para 5, one instance

of press conference which was allegedly held on January 29, 2002 by

Mr. Chahal had been given. It was stated that Mr. Chahal organized

the press conference in New Moti Bagh Palace i.e. residence of the

respondent. Mr. Chahal was personally present with the respondent

and meticulously organized each and every affair for better result

with the object of enhancing the prospect of the respondent. In sub-

para (iii), it was stated that the petitioner was able to procure a copy

of the cassette without any manipulation.

As to the allegations in sub-paras (i), (ii) and (iii) of para 5,

this is what the Court had to say;

"A reading of sub-paras (i), (ii) & (iii) clearly

demonstrate that the petitioner has failed to disclose as

to what was the purpose of press conference, what was

agenda for the same, who were the press correspondents

invited and who invited them and whether any press

note was prepared at the time of press conference or not,

what was addressed to the press correspondents, it has

nowhere been stated that whether any voter of the

constituency, in dispute, was present at the time of press

conference".

The Court also stated that the petitioner had not stated as to

whether any proceedings of the press conference were published in

the news paper on the next day, what were the contents of those

publications and what was its effect on the general electorate in the

constituency. The Court went on saying that the petitioner had failed

to give the name of a single person who had read the reporting

regarding press conference, which was allegedly conducted on

January 29, 2002. It was no where stated as to how the will of the

electorate was affected and how the press conference was an attempt

for the furtherance of electoral prospects of the returned candidate.

It appears that at the time of hearing of arguments, in the

presence of counsel for the parties, video cassette was seen by the

Court. The Court stated;

"At the time of arguments, in the presence of

counsel for the parties, video cassette was played in

Court. The Press Conference, as referred to above, was

being addressed by the respondent. He along with Press

Correspondents was seen sitting on chairs around a

table. Bharat Inder Singh Chahal was seen sitting on the

back side in second row. In between, he got up and had

a half circle of the conference hall i.e., Library Room of

the house of the respondent. At the time of press

conference, as was evident from the video cassette, light

snacks were served to the press correspondents. Shri

Chahal was not seen uttering a single word either to the

respondent or to any of the press correspondents. At the

time of arguments, Shri Saggar read over a transcript of

video cassette, which clearly demonstrated that at the

time of press conference, no appeal was made to the

electorate of the constituency of the respondent.

Conference was conducted with respect to expulsion of

rival candidates from the congress party. It has nowhere

been pleaded as to what was the object and method of

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assistance provided by Bharat Inder Singh Chahal."

Then relying on a decision of the Supreme Court in Daulat

Ram Chauhan v. Anand Sharma, (1984) 2 SCC 64 : AIR 1984 SC

621, the Court observed that the allegations made in the election

petition could not be said to be in the nature of 'material facts' as no

details were given. The Court stated that in the replication, all details

were given but they were "material facts" which the petitioner was

required to state in his election petition and not in the replication

which was filed beyond the period of limitation. Since in the election

petition material facts had not been stated, the petition did not

disclose a cause of action and was, therefore, liable to be dismissed.

Regarding a complaint made by Jagdeep Singh Chowhan to

the Chief Electoral Officer, the Court observed that in the election

petition it was stated that a Committee was constituted in view of

allegation that Mr. Chahal had violated the code of conduct and

disciplinary action was required to be taken against him. It was

recommended to issue notice to Mr. Chahal for major penalty, but the

petition was silent whether such notice was issued or not. During the

arguments, it transpired that no such notice was issued despite

recommendation made by the Chief Electoral Officer. In connection

with news items, the Court noted that those news items no where

indicated as to what was the quantum of help sought from and

rendered by Mr. Chahal to the respondent.

In paras 6 and 7 of the petition, a reference was made

regarding acceptance of resignation of Mr. Chahal by the respondent

and his appointment as Advisor to the Chief Minister. According to

the Court, facts mentioned in those paras would have been a

'corroborative piece of evidence' if the petition was capable to be

proceeded with but as the petitioner had failed to state material facts

in that regard, he could not get the benefit of the subsequent

development.

On the allegation of assistance of Mr. Mehra, Superintendent

of Police, according to the Court, no material fact had been disclosed

by the petitioner in the petition. On the meeting held at the Moti Bagh

Palace near Railway Phatak No.22 in which posters were distributed

with photograph of Mr. Mehra in police uniform, describing the

respondent as "Garibon Ka Massiha" showing the name of Mehra

Biradari Social Sangathan, the Court stated;

"This Court feels that averments made in this paragraph

are very vague. It has not been stated as to what was the

purpose of that meeting, who were participants, whether

any voter from the constituency in dispute had come

there, what was said by Mr. Mehra and how he tried to

influence the voters."

The Court went on to observe that it had no where been stated

as to what were the contents of that poster, who published it, whether

it was circulated and who read it. The Court, therefore, felt that the

petitioner had failed to disclose material facts as required by law.

As to allegation of projecting himself as 'Maharaja of Patiala'

in a poster issued by the respondent, the Court stated that the

petitioner had failed to disclose material facts as there was nothing to

show that the poster was issued by the respondent or by his

supporters with his consent.

Regarding election expenses, the Court observed that mere non

disclosure of expenditure would not be a corrupt practice. It is

incurring of expenditure in excess of the prescribed limit which will

amount to a corrupt practice. According to the Court, very vague

averments had been made simply by stating that the respondent had

incurred the expenses more than the prescribed limit, but no details

had been given. According to the Court, in the election petition, it

was stated that the respondent had not shown expenses of press

conference held on January 29, 2002 in his return of expenses but

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nothing had been stated as to what was the total expenditure and the

details had been given only in the replication. Then referring to the

video-cassette, the Court observed that only light snacks, tea and cold

drinks were served to the press correspondents. The Court stated;

"By taking judicial note of the same, it can be said that

even if those expenses are ordered to be included in the

election expenses of the respondent, the total expenses

still shall remain much below the prescribed limit".

In view of the above findings, the Court dismissed the petition

by passing the following order;

"Despite decision on issues No.5 and 8 in favour

of the petitioner, this petition, in view of findings on

issues No.6 and 7, cannot proceed further as the

petitioner has failed to disclose material facts regarding

corrupt practice, as alleged, to constitute a complete

cause of action, on the basis of which any relief can be

granted to him. Accordingly, this election petition fails

and the same is dismissed. No order as to costs".

On February 28, 2005, after hearing the learned counsel for the

appellant, the appeal was admitted. In view of the fact that the

election petition was dismissed at the threshold on the ground that it

did not disclose cause of action, the matter was placed for final

hearing. We have heard Mr. P.S. Mishra, senior Advocate for the

appellant and Mr. R.S. Cheena, Senior Advocate for the respondent.

Before we deal with the respective contentions of the learned

counsel for the parties, it would be appropriate if we refer to the

relevant provisions of the Act. The Preamble of the Act declares that

the Act has been enacted "to provide for the conduct of elections of

the Houses of Parliament and to the House or Houses of the

Legislature of each State, the qualifications and disqualifications for

membership of those Houses, the corrupt practices and other offences

at or in connection with such elections and the decision of doubts and

disputes arising out of or in connection with such elections".

Part I is Preliminary. Part II deals with qualifications and

disqualifications for membership of Parliament and of State

Legislatures. While Part III provides for issuance of notifications for

elections, Part IV relates to administrative machinery for the conduct

of elections. Conduct of elections has been dealt with in Part V. Part

VI relates to 'Disputes regarding elections'. Section 80 requires any

election to be questioned only by way of election petition. Under

Section 80A, it is the High Court which can try election petitions.

Section 81 provides for presentation of election petition and

prescribes the period of limitation. Section 82 declares as to who

shall be joined as respondents to such election petition. Section 83

deals with contents of petition and reads thus-

83. Contents of petition.\027(1) An Election petition\027

(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.

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Section 84 deals with relief that can be claimed by the

petitioner in an election petition. Section 86 relates to trial of election

petitions. It mandates the High Court to dismiss an election petition

which does not comply with the provisions of Sections 81, 82 or 117.

(Section 117 requires the election petitioner to deposit certain amount

as security for costs of the petition). Sub-section (5) of Section 86 is

an enabling provision and reads as under;

(5) The High Court may, upon such terms as to costs

and 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 corrupt practice

not previously alleged in the petition.

Section 100 enumerates grounds on which election of a

returned candidate may be challenged and declared void.

Commission of corrupt practice by a returned candidate is one of the

grounds for declaring an election to be void. The relevant part of

Section 100 reads thus;

100. Grounds for declaring election to be void\027(1)

Subject to the provisions of sub-section (2) if the High

Court is of opinion\027

(a) \005 \005 \005

(b) that any corrupt practice has been committed by a

returned candidate or his election agent or by any

other person with the consent of a returned

candidate or his election agent;

\005 \005 \005

the High Court shall declare the election of the

returned candidate to be void.

\005 \005 \005

Section 123 declares certain practices as 'deemed to be corrupt

practices'. The material part of the said section reads as under:-

"123. Corrupt practices. \026The following shall be

deemed to be corrupt practices for the purposes of this Act:\027

(1) \005 \005 \005

(2) Undue influence, that is to say, any direct or indirect

interference or attempt to interfere on the part of the

candidate or his agent, or of any other person with the

consent of the candidate or his election agent, with the free

exercise of any electoral right:

Provided that\027

(a) without prejudice to the generality of the provisions of

this clause any such person as is referred to therein

who\027

(i) threatens any candidate or any elector, or any

person in whom a candidate or an elector

interested, with injury of any kind including social

ostracism and ex-communication or expulsion from

any caste or community; or

(ii) induces or attempts to induce a candidate or an

elector to believe that he, or any person in whom

he is interested, will become or will be rendered an

object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of

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the electoral right of such candidate or elector within

the meaning of this clause;

(b) a declaration of public policy, or a promise of

publication, or the mere exercise of a legal right

without intent to interfere with an electoral right,

shall not be deemed to be interference within the

meaning of this clause.

(3) \005 \005 \005

(4) \005 \005 \005

(5) \005 \005 \005

(6) The incurring or authorizing of expenditure in

contravention of section 77.

(7) The obtaining or procuring or abetting or attempting to

obtain or procure by a candidate or his agent or, by any

other person with the consent of a candidate or his election

agent, any assistance (other than the giving of vote) for the

furtherance of the prospects of that candidate's election,

from any person in the service of the Government and

belonging to any of the following classes, namely:--

(a) gazetted officers;

(b) \005 \005

(c) \005 \005

(d) members of the police forces;

\005 \005 \005

Section 77 speaks of election expenses and maximum amount

which can be spent. Section 78 enjoins every candidate at an election

to lodge account with the District Election Officer.

From the above provisions, it is clear that an election petition

must contain a concise statement of 'material facts' on which the

petitioner relies. It should also contain 'full particulars' of any

corrupt practice that the petitioner alleges including a full statement

of names of the parties alleged to have committed such corrupt

practice and the date and place of commission of such practice. Such

election petition shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure, 1908 (hereinafter

referred to as "the Code") for the verification of pleadings. It should

be accompanied by an affidavit in the prescribed form in support of

allegation of such practice and particulars thereof.

All material facts, therefore, in accordance with the provisions

of the Act, have to be set out in the election petition. If the material

facts are not stated in a petition, it is liable to be dismissed on that

ground as the case would be covered by clause (a) of sub-section (1)

of Section 83 of the Act read with clause (a) of Rule 11 of Order VII

of the Code.

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 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 plaintiff's cause of action or

the defendant's defence depends. What particulars could be said to

be 'material facts' would depend upon the facts of each case and no

rule of universal application can be laid down. It is, however,

absolutely essential that all basic and primary facts which must be

proved at the trial by the party to establish the existence of a cause of

action or defence are material facts and must be stated in the pleading

by the party.

In the leadings case of Phillips v. Phillips, (1878) 4 QBD 127 :

48 LJ QB 135, Cotton, L.J. stated:

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"What particulars are to be stated must depend on

the facts of each case. But in my opinion it is absolutely

essential that the pleading, not to be embarrassing to the

defendants, should state those facts which will put the

defendants on their guard and tell them what they have

to meet when the case comes on for trial."

In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All

ER 287, Scott, L.J. referring to Phillips v. Phillips observed:

"The cardinal provision in Rule 4 is that the

statement of claim must state the material facts. The

word 'material' means necessary for the purpose of

formulating a complete cause of action; and if any one

'material' statement is omitted, the statement of claim is

bad; it is 'demurrable' in the old phraseology, and in the

new is liable to be 'struck out' under R.S.C. Order 25

Rule 4 (see Phillips v. Phillips); or 'a further and better

statement of claim' may be ordered under Rule 7."

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.

All 'material facts' must be pleaded by the party in support of

the case set up by him. Since the object and purpose is to enable the

opposite party to know the case he has to meet with, in the absence of

pleading, a party cannot be allowed to lead evidence. Failure to state

even a single material fact, hence, will entail dismissal of the suit or

petition. Particulars, on the other hand, are the details of the case

which is in the nature of evidence a party would be leading at the

time of trial.

In Halsbury's Laws of England, (4th edn.); Vol.36; para 38, it

has been stated;

"The function of particulars is to carry into operation the

overriding principle that the litigation between the

parties, and particularly the trial, should be conducted

fairly, openly and without surprises, and incidentally to

reduce costs. This function has been variously stated,

namely either to limit the generality of the allegations in

the pleadings, or to define the issues which have to be

tried and for which discovery is required. Each party is

entitled to know the case that is intended to be made

against him at the trial, and to have such particulars of

his opponent's case as will prevent him from being

taken by surprise. Particulars enable the other party to

decide what evidence he ought to be prepared with and

to prepare for the trial. A party is bound by the facts

included in the particulars, and he may not rely on any

other facts at the trial without obtaining the leave of the

court."

In connection with election matters, this Court has considered

the question in several cases. In Balwan Singh v. Lakshmi Narain &

Ors., 1960 (3) SCR 91 : AIR 1960 SC 770, in an election petition, an

allegation of corrupt practice of hiring or procuring vehicles by

returned candidate had been made. It was contended on behalf of the

respondent that full particulars as to contract of hiring vehicles had

not been set out in the election petition. The petition was, therefore,

liable to be dismissed. The Constitution Bench of this Court was

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called upon to consider the requirement of Sections 83 and 123 of the

Act in the light of the allegation in the election petition. Speaking for

the majority, Shah, J. (as his Lordship then was) observed that neither

in the petition as originally filed nor as amended, the date and place

of hiring of vehicle alleged to have been used for conveying the

voters, and the names of the persons between whom the contract of

hiring was settled were set out. The question, however, was whether

the election petition was liable to be rejected because it did not set

forth particulars of date and place of hiring the vehicle alleged to

have been used in conveying voters? The Court answered the

question in the negative and stated;

"The corrupt practice being the hiring or procuring of a

vehicle for the conveyance of the electors, if full

particulars of conveying by a vehicle of electors to

or from any polling station are given, Section 83 is

duly complied with, even if the particulars of the

contract of hiring, as distinguished from the fact of

hiring, are not given. Normally, the arrangement for

hiring or procuring a vehicle, is within the special

knowledge of the parties to that agreement and it is

difficult to assume that it as intended to require the

petitioner in an election dispute to set out the

particulars of facts within the special knowledge of

the other party, and expose the petition to a penalty of

dismissal if those particulars could not b given. If

particulars in support of the plea of the vehicle being

hired or procured by the candidate or his agent or by

another person was used for conveying voters to or

from the polling station are set out, failure to set out

particulars of the contract of hiring or arrangement

of procuring will not render the petition

defective".

The Court proceeded to observe;

"The practice to be followed in cases where insufficient

particulars of a corrupt practice are set forth in an

election petition is this. An election petition is not liable

to be dismissed in limine merely because full particulars

of a corrupt practice alleged in the petition, are not set

out. Where an objection is raised by the respondent that

a petition is defective because full particulars of an

alleged corrupt practice are not set out, the Tribunal is

bound to decide whether the objection is well founded.

If the Tribunal upholds the objection, it should give an

opportunity to the petitioner to apply for leave to

amend or amplify the particulars of the corrupt

practice alleged; and in the event of noncompliance

with that order the Tribunal may strike out the

charges which remain vague. Insistence upon full

particulars of corrupt practices is undoubtedly of

paramount importance in the trial of an election

petition, but if the parties go to trial despite the absence

of full particulars of the corrupt practice alleged, and

evidence of the contesting parties is led on the plea

raised by the petition, the petition cannot thereafter be

dismissed for want of particulars, because the defect is

one of procedure and not one of jurisdiction of the

Tribunal to adjudicate upon the plea in the absence of

particulars". (emphasis supplied)

In R.M. Seshadri v. G. Vasantha Pai, 1969 (1) SCC 27,

allegation as to corrupt practice had been made in the election

petition. It was alleged that the returned candidate was responsible

for employing cars, hired and procured for the conveyance of the

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voters to the polling booths. It was contended by the returned

candidate that the allegation was vague and the petition was liable to

be dismissed. Rejecting the contention, the Court held that it had

been sufficiently pleaded and proved that cars were in fact used. The

connection with the returned candidate with the use of the cars had

been specifically pleaded. In the opinion of the Court, "the rest were

matters of evidence which did not require to be pleaded and that plea

could always be supported by evidence to show the source from

where the cars were obtained, who hired or procured them and who

used them for the conveyance of voters." (emphasis supplied)

In S.N. Balakrishna etc. v. George Fernandez & Ors. etc.,

(1969) 3 SCC 238 : AIR 1969 SC 1201, the Court again considered a

similar question. Referring to the relevant provisions of the Act, the

Court held that Section 83 which provides that the election petition

must contain a concise statement of material facts on which the

petitioner relies and further that he must also 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 is mandatory. Then, drawing the

distinction between 'material facts' and 'particulars', the Court

observed;

"What is the difference between material facts and

particulars? The word 'material' shows that the facts

necessary to formulate a complete cause of action must

be stated. Omission of a single material fact leads to an

incomplete cause of action and the statement of claim

becomes bad. The function of particulars is to present as

full a picture of the cause of action with such further

information in detail as to make the opposite party

understand the case he will have to meet. There may

be some overlapping between material facts and

particulars but the two are quite distinct. Thus

the material facts will mention that a statement of

fact (which must be set out) was made and it must be

alleged that it refers to the character and conduct of the

candidate that it is false or which the returned

candidate believes to be false or does not believe to

be true and that it is calculated to prejudice the chances

of the petitioner. In the particulars the name of the

person making the statement, with the date, time and

place will be mentioned. The material facts thus will

show the ground of corrupt practice and the

complete cause of action and the particulars will give

the necessary information to present a full picture of

the cause of action. In stating the material facts it

will not do merely to quote the words of the section

because then the efficacy of the words 'material facts'

will be lost. The fact which constitutes the corrupt

practice must be stated and the fact must be correlated

to one of the heads of corrupt practice. Just as a plaint

without disclosing a proper cause of action cannot be

said to be a good plaint, so also an election petition

without the material facts relating to a corrupt practice

is no election petition at all. A petition which merely

cites the sections cannot be said to disclose a cause of

action where the allegation is the making of a false

statement. That statement must appear and the

particulars must be full as to the person making the

statement and the necessary information".

Referring to sub-section (5) of Section 86 of the Act which

allows the Court the amendment in the petition, the Court stated;

"The power of amendment is given in respect of

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particulars but there is a prohibition against an

amendment "which will have the effect of introducing

particulars if a corrupt practice not previously

alleged in the petition." One alleges the corrupt

practice in the material facts and they must show a

complete cause of action. If a petitioner has omitted to

allege a corrupt practice, he cannot be permitted to give

particulars of the corrupt practice. The argument that

the latter part of the fifth sub-section is directory only

cannot stand in view of the contrast in the language of

the two parts. The first part is enabling and the second

part creates a positive bar. Therefore, if a corrupt

practice is not alleged, the particulars cannot be

supplied. There is however a difference of approach

between the several corrupt practices. If for example

the charge is bribery of voters and the particulars give

a few instances, other instances can be added; if the

charge is use of vehicles for free carriage of voters, the

particulars of the cars employed may be amplified. But

if the charge is that an agent did something, it cannot

be amplified by giving particulars of acts on the part

of the candidate or vice versa. In the scheme of

election law they are separate corrupt practices which

cannot be said to grow out of the material facts

related to another person. Publication of false

statements by an agent is one cause of action,

publication of false statements, by the candidate is quite

a different cause of action".

In Raj Narain v. Indira Nehru Gandhi & Anr., (1972) 3 SCC

850, some of the principles had been elaborated which are relevant

and they are as under;

"(i) While a corrupt practice has got to be strictly

proved, it does not follow that a pleading in an election

proceeding should receive a strict construction. Even a

defective charge does not vitiate a criminal trial unless it

is proved that the same has prejudiced the accused. If a

pleading on a reasonable construction could sustain the

action, the court should accept that construction. The

courts are reluctant to frustrate an action on technical

grounds.

(ii) The charge of corrupt practice in an election

petition is a very serious charge and has to be proved. It

may or may not be proved. The allegations may be

ultimately proved or not proved. But the question for

the courts is whether a petitioner should be refused an

opportunity to prove those allegations merely because

the petition was drafted clumsily. Opportunity to prove

should not be refused.

(iii) If the allegations made in an election petition

regarding a corrupt practice do not disclose the

constituent parts of the corrupt practice alleged, the

same will not be allowed to be proved and those

allegations cannot be amended after the period of

limitation for filing an election petition, but the court

may allow particulars of any corrupt practice alleged in

the petition to be amended or amplified.

"Material facts" in Section 83 of the Representation

of People Act, 1951 shows that the ground of corrupt

practice and the facts necessary to formulate a

complete cause of action must be stated. The

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function of the particulars is to present a full picture

of the cause of action so as to make the opposite

party understand the case he has to meet. Under

Section 86(5) of the Representation of People Act if

the corrupt practice is alleged in the petition the

particulars of such corrupt practice may be amended

or amplified.

(iv) An election petition is not liable to be

dismissed in limine because full particulars of

corrupt practice alleged were not set out. If an

objection was taken and the Tribunal was of the view

that full particulars have not been set out, the

petitioner has to be given an opportunity to amend or

amplify the particulars. It is only in the event of

non-compliance with such order to supply the

particulars, that the charge which remained vague

could be struck down".

The Court stated that rules of pleadings are intended as aids for

a fair trial and for reaching a just decision. An action at law should

not be equated with a game of chess. Provisions of law are not mere

formulae to be observed as rituals. Beneath the words of a provision

of law, generally speaking there lies a juristic principle. It is the duty

of the Court to ascertain that principle and implement it.

Strong reliance was placed by learned counsel for the

respondent on Hardwari Lal before the High Court as well as before

us. The High Court also passed the impugned order on the basis of

the said decision. In Hardwari Lal, an election petition was filed by

the petitioner alleging corrupt practice against the successful

candidate. The corrupt practice as adopted by the returned candidate

had been set out in paragraph 16 of the petition which read as under-

"That the respondent committed the corrupt

practice of obtaining and procuring or attempting to

obtain and procure the assistance for the furtherance

of the prospects of his election from the following

persons who are in the service of the Government

and belong to the prohibited classes within the

meaning of Section 123 (7) of the Act:

1. Shri Chand Ram Rathi, Lecturer in Political

Science, Government College, Gurgaon.

2. Shri Gulab Singh, B.A., B.Ed., Government

High Court (School) Jaharsa (Gurgaon).

3. Pt. Bhim Singh, Assistant Sub-Inspector,

Police Security Lines, Lyton Road, New Delhi.

4. Ch. Chhattar Singh, M.A., B.T. Teacher V and

P.O. Bharai via Bahadurgarh, District Rohtak.

5. Ch. Mukhtiar Singh, Inspector of Police, Delhi.

6. Ch. Raghbir Singh, M.A., B.T., Chandigarh.

The respondent has written letters under his own

signatures to the above Government servants soliciting

their help and assistance in furtherance of the

prospects of his election." (emphasis supplied)

A preliminary objection was raised by the returned candidate

that paragraph 16 did not give necessary particulars about the nature

of assistance, the place and date where and when such assistance was

sought or received from the persons named in the petition.

Upholding the preliminary objection and reproducing sub-

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section (7) of Section 123 of the Act, the Court stated that

'obtaining', 'procuring', abetting', or 'attempting to obtain or

procure' assistance are different forms of corrupt practice. The Court

stated;

"It has to be noticed that the different expressions

obtaining, procuring, abetting or attempting to obtain or

procure are various forms of corrupt practices. It has to

be found as to whether the allegation of obtaining

assistance amounted to an allegation of fact. It is well

settled that general expression like 'fraudulently',

'negligently' or 'maliciously' in pleadings do not

amount to any allegation of fact. A fact is after all not a

mere word". (emphasis supplied)

According to the Court, the provisions of the section indicate

various heads of corrupt practice, such as, obtaining by a candidate or

his agent or by any other person, any assistance, or procuring such

assistance or abetting of such assistance or attempting to obtain or

procure such assistance. The material facts, therefore, were required

to be alleged as to whether the candidate obtained or procured or

abetted or attempted to obtain or procure such assistance.

The Court stated;

"Reading Paragraph 16 of the election petition one

will search in vain to find out as to whether the

allegations against the appellant are in regard to the

assistance under both heads or either head from each of

the six persons mentioned there. One will speculate as

to whether the appellant obtained and procured or

attempted to obtain and procure assistance from each or

some of the persons mentioned there. Obtaining or

procuring or attempting to obtain or procure assistance

are separate and independent forms of corrupt practice.

One will guess as to whether the allegations are that the

appellant committed all or one or more of the corrupt

practices of obtaining, procuring, attempting to obtain or

procure assistance from each of the persons mentioned

there. One will also conjecture and hazard as to what

assistance was obtained or procured or attempted to

obtain or procure from each of the persons mentioned

there, for the furtherance of the prospects of that

candidate's election." (emphasis supplied)

Merely alleging that the respondent obtained or procured or

attempted to obtain or procure assistance are extracting words from

the statute and it will have no meaning unless and until facts are

stated to show what that assistance was and how the prospect of

election was furthered by such assistance. According to the Court,

material facts are facts which if established would give the petitioner

the relief asked for. If the respondent had not appeared could the

Court have given a verdict in favour of the election petitioner? In the

opinion of the Court, the answer was in the negative because the

allegations in the petition did not disclose any cause of action.

Reference was made to another leading decision of this Court

in Udhav Singh v. Madhav Rao Scindia, (1976) 2 SCR 246 : (1977) 1

SCC 511. As we have already seen above, both the Code and the Act

employ the expression 'material facts'. Whereas Rule 2 of Order VI

of the Code uses the term 'particulars', clause (b) of sub-section (1)

of Section 83 of the Act uses the phrase 'full particulars'. But,

neither the Code nor the Act employs the expression 'material

particulars'. Though the phrase 'material particulars' had been used

by this Court in some cases [see Pratap Singh v. Rajinder Singh &

Anr.; (1975) 1 SCC 535 : AIR 1975 SC 1045; D. Venkata Reddy v. R.

Sultan & Ors.; (1976) 2 SCC 455 : AIR 1976 SC 1599], probably for

the first time, distinction was sought to be made between the two in

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Udhav Singh.

Considering the ambit and scope of Section 83 of the Act in

Udhav Singh, the Court stated;

"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 O.6, R.2, while clause (b) 257 is

analogous to Order 6 Rules 4 and 6 of the Code. The

distinction between "material facts" and "material

particulars" is important because different consequences

may flow from a deficiency of such facts or particulars

in the pleading. Failure to plead even a single material

fact leads to an incomplete cause of action and

incomplete allegations of such a charge are liable to be

struck off under Order 6, Rule 16, Code of Civil

Procedure. If the petition is based solely on those

allegations which suffer from lack of material facts,

the petition is liable to be summarily rejected for

want of a cause of action. In the case of a petition

suffering from a deficiency of material particulars,

the court has a discretion to allow the petitioner to

supply the required particulars even after the expiry of

limitation.

All the primary facts which must be proved at the

trial by a party to establish the existence of a cause of

action nor his defence, are "material facts". In the

context of a charge of corrupt practice, "material facts"

would mean all the 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. Whether in an election-

petition, a particular fact is material 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 the special circumstances of the case. 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 sec. 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 s. 83(i) 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

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."

The Court observed that the distinction between 'material

facts' and 'material particulars' was pointed out by the Court in

several cases including Hardwari Lal. We have gone through those

cases and in none of those cases, the distinction was drawn between

'material facts' and 'material particulars'. What had been done by

this Court was drawing of distinction between 'material facts' and

'particulars' or 'full particulars'.

In K.M. Mani v. P.J. Antony & Ors., (1979) 2 SCC 221, this

Court indicated that while alleging corrupt practice in an election

petition, substance of the allegation alone is material. The allegations

must be read as a whole. Precise material or contemporaneous record

of the averments regarding allegations should be produced. But,

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when it comes to proof, since commission of corrupt practice at an

election is a very serious matter not only for the candidate but also for

the public at large as it relates to the purity of electoral process and is

in the nature of quasi-criminal proceedings, it must be established

beyond reasonable doubt and not merely by preponderance of

probabilities.

In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 : AIR

1986 SC 1253, it was observed that the law as to corrupt practice is

well settled. In the context of a charge of corrupt practice, it would

mean that the basic facts which constitute the ingredients of a corrupt

practice alleged by the petitioner must be specific 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. Failure to plead even a single

material fact would amount to non-compliance with the mandate of

Section 83(1)(a) of the Act and the election petition is liable to be

dismissed.

The Court, however, drew the distinction between 'material

facts' and 'particulars'. According to the Court, 'material facts' are

facts, if established would give the petitioner the relief prayed for.

The test is whether the Court could have given a direct verdict in

favour of the election petitioner in case the returned candidate had not

appeared to oppose the election petition on the basis of the facts

pleaded in the petition.

In S.A. Sapa & Ors. etc. v. Singora & Ors. etc., (1991) 3 SCC

375, this Court held that Section 83(1)(a) stipulates that every

election petition shall contain a concise statement of material facts on

which the petitioner relies. It means that entire bundle of facts which

would constitute a complete cause of action must be concisely stated

in the petition. Clause (b) of the said section then requires an election

petitioner to set forth 'full particulars' of any corrupt practice alleged

against a returned candidate. According to the Court, those

particulars are obviously different from the 'material facts' on which

the petition is founded and are intended to afford to the returned

candidate an adequate opportunity to effectively 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 'full

particulars', where commission of corrupt practice is complained of,

is to delineate the scope, ambit and limits of the inquiry at the trial of

the election petition.

The Court also observed that the power of amendment granted

by Section 86(5) of the Act is relatable to clause (b) of Section 83(1)

and is coupled with a prohibition, namely, that the amendment will

not relate to a corrupt practice not already pleaded in the election

petition. The power is not referable to clause (a) of Section 83(1) as

the plain language of Section 86(5) confines itself to the amendments

of 'particulars' of any corrupt practice alleged in the petition and does

not extend to 'material facts'. It is clear from the trinity of clauses (a)

and (b) of Section 83 and sub-section (5) of Section 86 that there is

distinction between 'material facts' referred to in clause (a) of Section

83 and 'particulars' referred to in clause (b) of the said section and

sub-section (5) of Section 86 applies to the latter and not to the

former.

In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji

Meghe & Ors., (1995) 5 SCC 347, the Court stated that Section 83

provides that the election petition must contain a concise statement of

material facts on which the petitioner relies. He must also set forth

full particulars of the corrupt practice including as full a statement as

possible of the name of the parties alleged to have committed such

corrupt practice and the date and place of the commission of each of

such corrupt practice. The section has been held to be mandatory

which requires first a concise statement of material facts and then full

particulars of the corrupt practice, so as to present a full picture of the

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cause of action.

In L.R. Shivaramagowda, etc. v. T.M. Chandrashekar etc.,

(1999) 1 SCC 666 : JT 1998 (8) SC 278, referring to Udhav Singh,

the Court used two expressions, 'material facts' and 'material

particulars' and held that while 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 is over, absence of material

particulars can be cured at a later stage by an appropriate amendment.

In V.S. Achuthanandan v. P.J. Francis & Anr., (1999) 3 SCC

737, referring to Udhav Singh, the Court drew the distinction between

'material facts' and 'material particulars'. It was observed that

material facts are preliminary facts disclosing cause of action and

they have to be specifically pleaded. Failure to do so would result in

rejection of the election petition. Defect in material particulars,

however, can be cured at a later stage by amendment and the petition

cannot be dismissed in limine on the ground of such defect.

In V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2

SCC 294 : JT 2000 (1) SC 194, again the Court discussed two

phrases 'material facts' and 'material particulars'. Drawing the

distinction between the two, the Court held that while failure to plead

material facts was fatal to the petition, absence of material particulars

could be cured subsequently.

In Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233,

referring to S.N. Balakrishna, the Court held that quoting the words

of the section like chanting of a mantra does not amount to stating

material facts. Material facts would include positive statement of

facts as also positive averment of a negative fact, if necessary.

Failure to plead 'material facts' is fatal to the election petition and no

amendment of the pleadings is permissible to introduce such material

facts after the time-limit prescribed for filing the election petition.

The Court also stated that it is the duty of the court to examine the

petition irrespective of any written statement or denial and reject the

petition if it does not disclose a cause of action. To enable a court to

reject a plaint on the ground that it does not disclose a cause of

action, it should look at the plaint and nothing else.

In Santosh Yadav v. Narender Singh, (2002) 1 SCC 160, the

Court stated that an election petition must set out all material facts

wherefrom inferences vital to the success of the election petitioner

and enabling the court to grant the relief prayed for by the petitioner

can be drawn subject to the averments being substantiated by cogent

evidence. Concise and specific pleadings setting out all material facts

and then cogent affirmative evidence being adduced in support of

such averments, are indispensable to the success of an election

petition. An election petition, if allowed, results in avoiding an

election and nullifying the success of a returned candidate. It is a

serious step and, therefore, an election petition seeking relief on the

ground of corrupt practice must precisely allege all material facts on

which the petitioner relies in support of the plea.

In Mahadeorao Sukaji Shivankar v. Ramaratan Bapu &

Others, (2004) 7 SCC 181, dealing with 'material facts' and

'particulars', one of us (Thakker, J.) stated;

"Now, it is no doubt true that all material facts have

to be set out in an election petition. If material facts

are not stated in a plaint or a petition, the same is

liable to be dismissed on that ground alone as the case

would be covered by Clause (a) of Rule 11 of Order

VII of the Code. The question, however, is as to

whether the petitioner had set out material facts in the

election petition. The expression "material facts" has

neither been defined in the Act nor in the Code. It

may be stated that the material facts are those facts

upon which a party relies for his claim or defence. In

other words, material facts are facts upon which the

plaintiff's cause of action or defendant's defence

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depends. What particulars could be said to be material

facts would depend upon the facts of each case and no

rule of universal application can be laid down. It is,

however, absolutely essential that all basic and

primary facts which must be proved at the trial by the

party to establish existence of cause of action or

defence are material facts and must be stated in the

pleading of the party.

But, it is equally well settled that there is

distinction between "material facts" and "particulars".

Material facts are primary or basic facts which must be

pleaded by the party in support of the case set up by

him either to prove his cause of action or defence.

Particulars, on the other hand, are details in support of

material facts pleaded by the party. They amplify,

refine and embellish material facts by giving finishing

touch to the basic contours of a picture already drawn

so as to make it full, more clear and more informative.

Particulars ensure conduct of fair trial and would not

take the opposite party by surprise."

As we have already observed earlier, in the present case,

'material facts' of corrupt practice said to have been adopted by the

respondent had been set out in the petition with full particulars. It has

been expressly stated as to how Mr. Chahal who was a Gazetted

Officer of Class I in the Government of Punjab assisted the

respondent by doing several acts, as to complaints made against him

by authorities and taking of disciplinary action. It has also been

stated as to how a Police Officer, Mr. Mehra, who was holding the

post of Superintendent of Police helped the respondent by organizing

a meeting and by distributing posters. It was also alleged that correct

and proper accounts of election expenses have not been maintained

by the respondent. Though at the time of hearing of the appeal, the

allegation as to projecting himself as 'Maharaja of Patiala' by the

respondent had not been pressed by the learned counsel for the

appellant, full particulars had been set out in the election petition in

respect of other allegations. The High Court, in our opinion, was

wholly unjustified in entering into the correctness or otherwise of

facts stated and allegations made in the election petition and in

rejecting the petition holding that it did not state material facts and

thus did not disclose a cause of action. The High Court, in our

considered view, stepped into prohibited area of appreciating the

evidence and by entering into merits of the case which would be

permissible only at the stage of trial of the election petition and not at

the stage of consideration whether the election petition was

maintainable.

We, therefore, hold that the High Court was wrong in

dismissing the election petition on the ground that material facts had

not been set out in the election petition and the election petition did

not disclose a cause of action. The order passed by the High Court,

therefore, deserves to be quashed and set aside.

For the foregoing reasons, the appeal deserves to be allowed

and is, accordingly, allowed. The order passed by the High Court is

set aside. The Election Petition No. 26 of 2002 is restored to file, and

is remitted to the High Court to decide the same on merits. Since the

election took place in the beginning of 2002 and the petition was

dismissed on preliminary ground as not maintainable and is required

to be decided on merits, the High Court is requested to give priority

and dispose it of expeditiously. In the facts and circumstances of the

case, however, there shall be no order as to costs.