REGD. NO. D.L.-33001/99

The Gazette of India

PUBLISHED BY AUTHORITY

No. 20 ]

NEW DELHI, SATURDAY, JULY 14, 2001/ASADHA

25,

1923

Separate Paging is given to this Part in order that it may be filed

as a separate compilation.

PART II—Section 3—Sub-section (iii)

Orders and Notifications issued by Central Authorities (other than the Administrations of Union Territories)

ELECTION COMMISSION OF INDIA

New Delhi, the 13th June, 2001

O.N. 83.—In pursuance of section 106/111 of the Re-

presentation of the People Act, 1951 (43 of 1951), the Election

Commission hereby publishes the judgement of the High

Court of Madras dated 6-2-2001 in Election Petition No. 4 of

2000.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Ordinary Original Civil Jurisdiction)

Tuesday, the 6th day of February Two thousand and one

CORAM

The Hon'ble Mr. Justice P. Sathasivam

Original Application No. 1190 of 2000

and

Election Petition No. 4 of 2000

Election Petition No, 4 of 2000

M. Asif

Petitioner

Vs.

1. N.T.Shanmugam

2. C.K. Thamizharasan

3. M. Kuppusamy

4. J. Sathiyamoorthy

5. C. Subbarayan

2064 GI/2001—1

(195)

196

THE GAZETTE OF INDIA: JULY 14. 200 I/ASADHA 23. 1923

[PARI II—SEC. 3(iii)]

6. M. Thanikesan

7. V.N. Panncer

8. The Returning Officer/District

Collector of Vellore, VcHorc

Parliamentary Constituency, Vellore.

9. The Chief Electoral Officer,

Office of the Chief Electoral Officer,

of Tamil Nadu, Secretariat, Chennai-9.

10. The Chief Election Commissioner Rs. 10 has

Election Commission of India,

been struck

Nirvachan Sadan. Asoka Road,

from the array

New Delhi-110001.

of respon-

dents in the

Election

Petition as per

the order

dt. 6-12-2000.

Original Application Ko. 1190 of 2000

N. T. Shanmugam

Applicant/

No. 28, South Avenue Street,

First Respon-

Phase-1. Sathuvachaeri.

dent in the

Vellore. 632 009.

Election

Petition No. 4

of 2000.

1. M. Asif

Respondent/

Petitioner in

Election

Petition No. 4

of 2000.

2. C.K. Thamizharasan

3. M.Kuppusamy

4. J. Sathiyamoorthy

5. C. Subbarayan

6. M, Thanikesan

7. V.N. Panneer

8. The Returning Officer and

the Collector of Vellore,

Vellore Parliamentary Constituency,

Vellore.

9. The Chief Electoral Officer,

Respondents/

Office of the Chief Electoral

Respondents

Officer of Tamil Nadu,

Secretariat, Chennai-9.

Election Petition praying that this Hon'ble Court may

be pleased to:

(a) declare the election of the 1st respondent as a

member of Parliament from (No. 7) Vellore Con-

stituency in the election held on 11-9-1999 as null

and void and set aside the same. •

(b) declare the Petitioner has been duly elected from

No. 7. Vellore Parliamentary Constituency in the

election held on 11-9-1999.

Original Application filed under Rule 3 of the Rules of

the Madras High Court, Election Petitions 1967 Order XIV

Rule VIII ofOriginal Side and under Section 86,81(1), 81(3)

and 83 (1) of the Representation of People Act 1951, prayi ng

to dismiss the Election Petition No. 4 of 2000 on preliminary

ground.

The above Original Application coming on for hearing

before this Court on 22nd and 23rd day of January 2001

and upon hearing the arguments of Mr. R. Thiagarajan,

Senior Counsel for M/s. D. Gubcndra Gunabalan and M.

Muthappan counsel for Applicant/First Respondent and of .

M/s. S. Thangasivan, counsel for the Respondent/Petitioner

and upon reading the Judges Summons, affidavit of the

respondent/Petitioner and perusing the Election petition and

material documents filed herein and having stood over for

consideration till this day the Court made the following

Order.

This Original Application has been taken out by the

first respondent in Election Petition No. 4 of 2000 under Rule

3 of the Rules of the Madras High Court—Election Petitions,

1967 and Order 14 Rule VIII ofOriginal Side Rules and under

Sections 86, 81(1). 81(3) and 83(1) of the Representation of

People Act, 1951.

2. In this Original Application, the applicant/first

respondent in the Election Petition has applied to this Court

to dismiss the Election Petition No. 4 of 2000 on preliminary

grounds by holding that no triable issue arises or survives.

3. The factual matrix in the Election Petition has to be

summarised before taking up the present application for

discussion. The first respondent in this application/petitioner

irt the Election Petition No. 4/2000 has filed the same under

Sections 80. 100. 101 and 123 of the Representation of the

People Act, 1951 seeking for a declaration that the election

of the first respondent as a member of Parliament from (No.

7) Vellore Constituency- in the election held on 11-9-1999 as

null and void and set aside the same and also for declaration

that the petitioner has been duly elected from No. 7 Vellore

Parliamentary Constituency in the election held on 11-9-1999.

4. The petitioner in the election petition who is the first

respondent in this application will be referred as the "election

petitioner", while the applicant in this Original Application,

who is the first respondent in the election petition will be

referred as the "returned candidate".

5. According to the election petitioner, during the

General Election for the 13th Lok Sabha, he contested from

the Vellore Parliamentary constituency on the ticket of All

India Anna Dravida Munnetra Kazhagam party. He submitted

his nomination papers on 18-8-1999 with the Returning

Officer and the District Collector of Vellore Parliamentary

Constituency, Vellore (8th respondent in the Election Petition)

and after scrutiny, his nomination was accepted by the 8th

respondent and All India Anna Dravida Munnetra Kazhagam

(in short "A.I.A.D.M.K.") party's symbol of "Two Leaves"

was allotted to him, The returned candidate was in the fray as

197

a candidate of Pattali Makkal Katchi and he was allotted with

ihc symbol of "mango". We arc not concerned with the other

candidates who contested the election.

6. Now 1 shall refer the main allegations made by the

election petitioner in the Election Petition, Since the material

averments have been raised from para 7 onwards, I shall refer

the same in the seriatim commencing from para 7. In para 7 it

is stated that on seeing the overwhelming support by the

general public to the election petitioner, from the first day of

electioneering it self the returned candidate indulged in

various irregularities by violating all norms; rules and

regulations evolved by the Election Commission, The returned

candidate and his agents virtually pumped in several crorcs

of rupees and indulged in purchase of votes from various

villages by paying illegal gratification to the voters and

thereby wooing them to vote in his favour. They resorted to

paying huge amounts of money and various gifts like brass

vessels, sarees. dhothies etc., to various sections of people in

many villages as illegal gratification and transported them to

polling booths and induced as well as compelled them to cast

theirvotes in his favour. The action of the returned candidate

'amounts to corrupt practice as per Secton 123 of the

I Representation of People Act, 1951. The returned candidate

! grossly exceeded the expenditure limit allowed by the election

commission by spending crores of rupees for wall posters,

banners, cut outs, ornamental lights, wall paintings, arches,

(flags and election meetings with decorated dais, lighting and

kenucs with thousands of high power lights, loud speakers

clc. He used more than 100 vehicles every day for

electioneering. On the date of election on 11-9-99 more than

2000 vehicles, hired by the returned candidate and his agents

from various parts of the State of Tamil Nadu as well as the

tidjoining State of Andhra Pradesh, were illegally used for

(ransporting the voters to the polling booths. After noticing

3)11 ihe malpractices and irregularities committed by the

Returned candidate, the oificials of the 8th and 9th respondents

and also the observers deputed by the Election Commission

^f India videographed the lavish nature of electioneering and

the banners, cul-outs. other materials and vehicles used

mcrcfor. on numerous occasions.

7 In parti 8. it is staled that on the date of polling viz.,

o|n 11-9-99 when Ihe election petitioner was on rounds for

inspecting the polling booth in Vellore constituency, he

noticed the widespread rigging and bogus voting in

Arcouargudisi polling booth by the returned candidate and

his agents and a report was given to the police authorities.

Onh on the arrival of the Deputy Superintendent of Police of

Viellore and after the intervention of the said officer, the

irregularities and rigging committed by the elected candidate

aijid his men was under control. Similar complaints of rigging

and widespread irregularities were noticed in Bagayam polling

bdolh. The Returned candidate and his men had brought

Ihpusards of menfrom outstations and casted bogus votes

fo'rccfulh

8. In para 9 it is stated that the returned candidate being

the candidate supported by the ruling party in the centre as

well as in the State, the entire Government machinery

including Government cars and other vehicles were used by

him for electioneering. Inspite of making complaints to the

8th respondent and police authorities on various occasions,

no action was taken by the authorities in view of the fact that

the returned candidate contested the election with the support

of the ruling parties both in the State as well as in the Centre

and he was also a sitting M.P. in the 12th Lok Sabha.

9. In para 10 it is stated that 8th and 9th respondents'

officials videographed the public meeting arranged by the

returned candidate and his agents which was attended by

Mr. Karunanidhi. Chief Minister of Tamil Nadu in Vellore

for canvassing votes for the relumed candidate. For the said

programme alone more than 20 lakhs rupees was spent by

the returned candidate. Further, the Mayor of Chcnnai City

Mr. M.K. Stalin was also brought to the neighbouring areas

by the returned candidate and for arranging his public

meetings several lakhs of rupees was spent by the returned

candidate.

•10 In para 11 it is alleged that the returned candidate

.^pittsehtly living with his family members in Vcllore Town.

:' However, his name does not find a place in the voters list of

Vellore and he has furnished an address in a remote village

called Melarasampatti to be his place of residence where his

name reportedly appears in the voters list, in the nomination

papers submitted by him with the 8th respondent. The returned

candidate has exercised his franchise also in Melarasampatti

village polling booth and it is clear that he has claimed some

other person's name appearing in the voter's list to be of

himself and falsely represented to the 8th respondent while

filing his nomination papers and he has also exercised his

franchise by utilising the same. This is in gross violation of

the rules and regulations and he is liable to be disqualified

and his nomination papers should have been rejected by the

8th respondent at the initial stage itself. His party colleague

one Mr. Ponnuswamy who has contested from Chidambaram

reserved constituency from the ticket of Pattali Makkal Katchi

has also indulged in an almost similar malpractice and the

Election Commission itself has issued notice to the said

candidate for having cast his vote in Chidambaram polling

booth illegally and the above fact would clearly go to show

the said malpractice has been by and large attempted to by

the returned candidate's political part}' members encouraged

by the Central and State ruling parties.

11. In para 12. it is stated that serious malpractice of

tampering with the ballot boxes has been committed by the

returned candidate and his agents in the Anikat, Katpadi, Ami

and Vellore Assembly segments of Vellore Parliamentary

constituency.

12. In para 13, it is alleged that the entire ballot boxes

pertaining to Vellore Parliamentary constituency were brought

to the Thanthai Periyar Polytechnic building in Vellore Town

and while transporting the ballot boxes from various places,

198

THE GAZETTE OF INDIA: JULY 14, 2001/ASADHA 23,1923

[PART II—SEC. 3(iii)]

the 8th respondent should have permitted one of the agents

of the election petitioner as well as other candidates to

accompany the boxes upto the storage point. However, the

8th respondent officials did not permit the election petitioner's

agents to accompany the ballot boxes and hence the election

petitioner was denied of the opportunity to ensure that there

is no malpractice en route. The 8th respondent's officials had

allowed only the returned candidate to affix his seal in

violation of rules and regulations, Even while opening the

safety rooms also, the 8th respondent did not permit the

election petitioner's agent to be present and in fact the 8th

respondent should have obtained the signatures of the agents

of the election petitioner after satisfying them that all the locks

were intact.

13. lnpara 14. it is stated that 8th respondent's officials

have stored the ballot boxes in various rooms spread over

across the spacious campus of Thanthai Periyar Polytechnic

and on 3-10-1999 at about 6.30 P.M., when the election

petitioner's agent Mr, G. Hussain was sitting in one of the

halls in the Thanthai Periyar campus he had sensed some

hasty movement of the returned candidate and his men inside

the premises near the room where the ballot boxes pertaining

to Anicut Assembly segment was stored and immediately the

said agent G. Hussain had rushed to the said room where

Anicut Assembly segment votes were stored and to his great

shock and surprise he had found a group of returned

candidate's men and his agents speeding away from near the

room and alighting a car parked near the gate. On realising

that the returned candidate and his men had indulged in a

grave malpractice of changing the ballot boxes by illegally

opening the locked door by unscrewing the screws available

in the padlock of the so called safety room with the help of

the 8th respondent's subordinates and the couple of police

personnel posted there, his agent informed the election

petitioner with regard to the said incident.

14. lnpara 15, it is stated that the election petitioner

rushed to the said premises at about 6.50 P.M. with his chief

agent Mr. Era. Sa. Maran and press persons including the

press photographer called Mr. Gnanamani of Malai Murasu

daily and few others inspected the said room. During the

inspection, the election petitioner was shocked to notice that

the padlock on the door of the safety room in which the ballot

boxes pertaining to Anikut Assembly segment was kept has

been removed and refixed. After noticing the useless safety

system, the election petitioner realised that the 8th respondent

and his subordinates had acted under pressure from the

returned candidate and the ruling parties in the State as well

as the Centre and allowed the returned candidate to indulge

in the grave malpractice of changing the ballot boxes and

bags.

15. lnpara 16. it is stated that after noticing the illegal

activity of the returned candidate and his men and the useless

safety system provided by the 8th respondent, the election

petitioner made the padlock photographed by Mr. Gnanamani,

the press photographer of Malai Murasu, Vellore, who

accompanied the election petitioner and a complaint was also

lodged by him to the subordinate of the 8th respondent and

police personnel who accompanied the election petitioner

during his inspection. The 8th respondent failed to take any

action regarding the said incident in view of the political

pressure.

16. In para 17, it is alleged that under the influence of

the returned candidate, the Malai Murasu photographer

Mr. Gnanamani refused to give copies of the close-up

photographs. In sub-paragraph (a) of paragraph 17, it is stated

that the total number of electors available in the Vellore

constituency is 11,52,421. The total number of votes polled

on the date of polling, namely, 11th September, 1999 is

7,00,114 according to the official statement issued by the

respondents 8 to 10 on the next day of the polling, after

checking up and verifying the details furnished by all the

polling officers. The said polled votes works out to about

60.92% votes in the Vellore constituency. However, the total

number of votes found available after the counting is 7,02,639

and thus there was a difference of 2,525 votes, which is only

due to the malpractice committed by the returned candidate

and his ajjents. In sub-paragraph (b) it is stated that the said

incident would clearly show that there was widespread

tampering of ballot boxes by the returned candidate and his

agents during the long gap of 25 days unnecessarily provided

by 9th respondent for counting votes after the date of polling,

In sub-paragraph (c) it is stated that with the view of getting

the full boolhwise particulars of the votes polled and votes

found at the time of counting, and also to voters list for the

entire constituency from the 8th respondent, the election

petitioner submitted applications to the 8th respondent on

9-1-99 and on 27-10-99 through his chief election agent and

the 8th respondent has refused to give such particulars. The

8th respondent and his subordinates are not at all responding

to the election petitioner's other requests for the details about

the voter's list pertaining to the entry of the returned

candidate's name also till the date of filing of the election

petition.

17. In para 18, it is stated that 8th and 9th respondents

and their subordinates have tried their level best to tally the

votes polled and the votes found at the time of counting and

they have miserably failed in their efforts to manipulate the

accounts and now they arc again attempting to tamper with

the same.

18. In para 19, it is stated that a perusal of the

photograph which was taken on 3-10-99 by closely focussing

the padlock would clearly show that there was no safety centre

bolt and there were only outer screws available in the padlock

which have been easily removed by the returned candidate

and his agents,

19. In paragraph 21, it is stated that the illegal activity

of the returned candidate and his agents in replacing the

genuine ballot boxes with bogus boxes with full of bogus

votes made in favour of the returned candidate is evident from

the above facts.

199

21). In paragraph 23, it is stated that in view of the fact

lhal it was declared by various media persons and obseners

that the victory of the election petitioner in Vcllore

constituency was a foregone conclusion he did not register

any written complaint before the 8ih and 9th respondents.

21, In paragraph 2 4, it is stated that during the counting

of votes on 6-10-99 thousands of votes which were polled in

favour of the election petitioner were declared to be invalid

by the 8th respondent and his subordinates, wantonly under

the complete influence of the returned candidate and his party

men. It is evident from the fact that an exorbitant number

viz , 13,264 votes have been declared as invalid votes and if

a recounting is conducted it would clearly show that the

respondents 8 and 9 have exercised power colourably and

supported the returned candidate.

22. In para 25, it is stated that the returned candidate

and his agents have indulged in large scale corrupt practice

in the interest of the returned candidate by changing the ballot

boxes and bugs by opening the room in which the ballot boxes

of Anicut constituency were kept and replaced the genuine

ballot bags and boxes with bogus ones with the help of 8th

respondent and his subordinate officials and thereby caused

grave injustice to the election petitioner. Similar mischiefs

have been played in respect of the ballot boxes and bags

pertaining to other three Assembly segments viz.. Ami,

Katpadi and Vellore. Had the returned candidate not resorted

to such corrupto and malpractices, the outcome of the election

of Vcllore Parliamentary constituency for the 13th Lok Sabha

would ha vc been in favour of the election petitioner and hence

I the present election has to be held as void under Section 100,

! Sub-section l(d) (ii) (iii) etc. The corrupt and malpractices

I of the returned candidate and his men has materially affected

the prospects of the election petitioner in the said election

i and the same has rendered the entire election process null

and void

2.1 In paragraph 26, it is stated that the 8th respondent

I and his officials has not reckoned all the votes polled in favour

! of the election petitioner and rejected thousands of votes

| polled in favour of him (election petitioner) as invalid. Further,

Ihc Kth respondent's subordinates have reckoned thousand

of actual invalid votes in favour of the returned candidate, if

all (he votes polled in favour of the election petitioner had

been accounted properly, he would have won with a huge

margi n of votes from the said constituency and the declaration

pf Ihe returned candidate is illegal and void. During the

counting also, the 8th respondent as well as his subordinates

}\erc grossh A iolating all norms of settled procedure in

support of the returned candidate and after completion of

couni ing also, ihcy neglected obtaining the signature of neither

lihe election petitioner nor his cliief election agent before

declaring results, and such a declaration is unlawful.

24. Now 1 shall refer the averments made in the

affidavit in Original Application No. 1190 of 2000 filed by

tlic returned candidate/first respondent in the Election Petition.

Tjhc averments made in the said petition are briefly stated

here under:—The election petitioner has not complied with

the mandatory requirements of Sections 81(1), 81(3), and 83

(I) of the Representation of the People Act, 1951 (hereinafter

referred to as "the Act"). The allegations contained therein

arc vague, indefinite, incorrect, misleading, bogus and

concocted without disclosing any cause of action for the

election petition. The grounds alleged in the election petition

do not constitute grounds as contemplated under Section 100

of the Act. The election petitioner lost by a margin of large

number of votes. The election petition suffers from lack of

concise statement of material facts. \\ has not been pleaded

how the result of election in so far as it concerns the returned

candidate has been materially affected. No contemporaneous

incidents have been cited in the petition disputing the

correctness of the process of the election in the dispute. Tliis

amounts to non-disclosure of cause of action rendering the

petition liable to be rejected. The election petition deserves

to be rejected under Sections 86 and 87 of the Act read with

Order 7 Rule II and Section 151 of the Code of Civil

Procedure. The eleclion petitioner has no where pleaded any

violation or contravention of any of the provisions of the Act

or the rules made thereunder, of the commissioning of any

corrupt practice either by the returned candidate or by any

one with the consent affecting the result of the election so far

it concerns the returned candidate. The several allegations in

the election petition have been made without any basis

whatsoever and without even disclosing the source from

which the election petitioner has made the allegations. The

election petition suffers from want of non-compliance with

mandatory provisions under the Representation of the People

Act, 1951 such as Sections 83, 83(2), 83(3), 83(l)(c) and

Rule 94A of the Rules framed thereunder. Throughout the

election petition, no cause of action has been disclosed nor

any material facts and particulars constituting the ground for

interference has been alleged and hence the election petition

is liable for dismissal on this ground alone. Section 83(1 )(c)

of the Act provides that an election petition must be signed

by the petitioner and it is also required to be verified in the

manner indicated in the Code of Civil Procedure for

verification of pleadings. The election petition has not been

verified by the election petitioner in accordance with the above

said provision and hence it is liable to be rejected. This

verification does not specify as to which of the said paragraphs

or which part of the said paragraphs are verified by the

petitioner from his knowledge and which of the said

paragraphs or part of the paragraph arc verified from

information received. The election petitioner has also not

specified or verified as to the source from which information

was received. The verification made by the election petitioner

in the election petition is no verification at all in the eye of

law and hence the election petition is liable to be dismissed

for want of proper verification. In the copy of the said election

petition served on the returned candidate, it is seen that the

annexures to the present petition have not been signed and

verified in the manner laid down in Section 83( 1) read with

Section 83(2) of the Act. The annexures or the schedule are

200

THE GAZETTE OF INDIA ; JULY 14, 2001/ASADHA 23/1923

[PART II—SEC. 3(iii)]

therefore liable to be struck off for want of proper verification

thereof. In the copy of the election petition served on the

returned candidate, it is seen that the annexure to the present

petition have not been signed and verified in the manner laid

down in Section 83(2) of the Act. Section 83 of the Act

provides that the election petitioner shall verify an affidavit

in the prescribed form in support of the allegations regarding

corrupt practices made in the petition. Rule 94A of the conduct

of Election Rules, 1961 requires that the affidavit must be in

Form 25. Form 25 makes it clear that the election petitioner

must specify the nature of the corrupt practices and the details

of the corrupt practice as alleged. These provisions have not

been complied with by the election petitioner as alleged; hence

the election petition is liable to be dismissed for non-

compliance with such requirements. The copy of the affidavit

which has been served on the returned candidate and which

is said to be in support of the alleged corrupt practice is not

an affidavit at all in the eye of law. Hence for want of

necessary supporting affidavit being filed by the election

petitioner, the allegations of corrupt practices are liable to be

struck off.

25. It is further stated that the election petition is liable

for dismissal inasmuch as the solemn affirmation and

verification in the affidavit filed by the election petitioner in

support of the petition is at variance with the solemn

affirmation and verification in the main election petition. Even

while verifying the main election petition, though the election

petitioner alleges that the contents of paragraphs 1 to 26 have

been verified to be true and correct to his knowledge, he has

not disclosed the source of information, As per Section 81

(3) of the Act, it is obligatory for the election petitioner to

file the election petition along with as many copies thereof as

there are respondents mentioned in the petition and to attest

each and every such copy under his own signature to be true

copy of the petition. Section 81(3) is mandatory. In the present

case the election petitioner has clearly failed to comply with

Section 81(3) of the Act. The copy of the election petition

that was served on the returned candidate is neither a true

copy of the original election petition filed into the Court nor

the same has been duly attested by the election petitioner,

There is, therefore, non-compliance of the requirement of

Section 81(3) of the Act warranting the dismissal of the

petition. The petition is also liable to be dismissed since the

affidavit served on the returned candidate along with the copy

of the main election petition are not true copies of the original.

The time, place, date, name and particulars and name of the

oath commissioner, before whom they were sworn, the record

of its having been sworn have not been given in the copies of

the affidavit supplied to the returned candidate. There is thus

a total non-compliance with the various provisions of the Act

and Rules framed thereunder and consequently the election

petition merits dismissal.

26. The election petition lacks in the conscise statement

of material facts and particulars and hence it is liable to be

dismissed on the ground that it docs not disclose any cause of

action. Section 83 of the Act is mandatory which requires a

concise statement of material facts and full particulars of the

alleged corrupt practice so as to present a full picture of the

cause of action. In the case of allegations or corrupt practices

a full statement of the names of the parties alleged to have

committed such practices, the date and place of

commissioning the alleged practice must be specifically

pleaded. A mere reading of the allegations in the election

petition would show that the various allegations are baseless

concocted and bogus and aimed with a view to harass the

returned candidate.

27. It is further¹ stated that Section 83 of the Act

contemplates a clear distinction between "material facts" and

"material particulars". Failure to plead even a single material

fact leads to an incomplete cause of action and the incomplete

allegations are therefore liable to be struck off under Order 6

and Rule 16 of the Code of Civil Procedure. It is settled

position that where the Court finds that neither material facts

have been stated nor full particulars of the corrupt practice

alleged to have been furnished in the election petition, then

the election petition can be dismissed under the provisions of

the Code of Civil Procedure which is applicable in the present

case read with Section 83(1) on the sole ground that it docs

not disclose a cause of action. Respondents 8 and 9 have

unnecessarily been impleadcd as parties in the case. The

petition is bad for misjoinder of parties. The allegations

regarding irregularities are vague, general and without

material facts, No particulars as to the time, date and place

and also the persons who did the rigging and bogus voting

are totally missing in the election petition. Regarding the

videograph taken by the officials of 8th and 9th respondent

in the public meetings arranged by the relumed candidate

and his agents in which the Chief Minister of Tamil Nadu

attended at Vcllore, the election petitioner has not furnished

particulars such as name of the place, time and other material

facts. Regarding allegation of malpractice of tampering with

the ballot boxes alleged to have been committed by the

returned candidate and his agent are again vague and

indefinite without any material facts and particulars as

required in law. There i s no allegation as to any actual removal

of cither the screws or the padlock nor is there any allegation

as to whether anybody saw the same being removed by

anybody. No contemporaneous act in support of the above

allegations have been disclosed. The further allegation that

the 8th respondent and his officials had not reckoned all the

votes polled in favour of the election petitioner and rejected

thousands of Votes polled infavour of the election petitioner

as vague and general without material facts and particulars.

Before declaring the results, the procedure has been clearly

followed and observed. In order to declare the election of the

returned candidate to be void. Section 100(l)(d)(IV) it is

necessary for the election petitioner to plead that the result of

the election in so far as it concerns the returned candidate has

been materially affected by the alleged non-compliance with

the provisions of the Acts or the Riiles. There is no averment

in the election petition containing necessary material facts

201

and particulars and. the returned candidate had spent for the

election any amount in excess of the prescribed limit and with

the result the election has been materially affected by the

failure to give a true and correct account of the expenditure.

In the absence of any snch averment, it is not open to the

election petitioner to adduce any evidence to that effect. If

these facts are not pleaded with necessary material facts and

particulars, the election petition is liable to dismissal as held

by various decisions of the Hon'ble Supreme Court.

28. The election petitioner has filed a counter affidavit

in O. A, No. 1190 of 2000 reiterating what he has stated in the

election petition. It is stated that the election petitioner has set

out all material facts and full particulars in the petition. Further

particulars can also be added by amending the petition under

Section 86(5) of the Act, The election petitioner has complied

with Sections 81, 82,93 and 117 of the Act. In any event, there

has been substantial compliance of the mandatory provisions

of the Act. The alleged defects pointed out curable defects and

as such the application seeking dismissal of the Election Petition

on preliminary grounds is not maintainable and it is nothing

but an abuse of process of law. The documents filed with the

! Election petition and the affidavit filed in Form No. 25 are all

attested and are in compliance with the relevant provisions of

the Act and Rules. The election petitioner has furnished required

number of copies of the election petition as contemplated in

Section 81(3) of the Act and he has attested each and every

copy with his own signature as true copy, in compliance with

Section 81(3) of the Act. The same was verified by the office,

It is stated that section 86( 1) of the Act does not refer to section

!jt3 of the Act. He has furnished the required number of true

copies of the Election petition, documents filed along with the

election petition and affidavit in Form No. 25 duly attested by

him as true copy under his signature and submitted the same to

tjie office for being served on the respondents in the election

petition and thus complied with the statutory requirements. The

main election petition has been filed on specific grounds of

corrupt practice and the same cannot be termed as not in

accordance with Sections 81(1), 81(3), 83(1) of the Act. The

Hon"ble Supreme Court has on various occasions reiterated

thW the election petitions should not be dismissed even when

the affidavit is not drawn up as per Form 25 of the Conduct of

Election Rules. He has complied with all the relevant provisions

ofithe Act and Conduct of Election Rules, 1961. Moreover, he

has also filed an additional affidavit in strict compliance of the

Cxjmduct of Election Rules, 1961 and the question of dismissing

his election petition does not arise at all, The returned candidate

i s pnly attempting to delay the trial process by filing the original

application which is totally untenable and not bonaflde. Further,

as x:r law, a concise statement of fact alone is required to prove

his pleadings in the trial of the election petition as contemplated

in the Act by producing material evidences and hence the above

application is liable to be rejected.

29. Before discussing the matter further, it will be

useful to bear in mind the relevant provisions of the

Representation of the People Act, 1951 (in short "the Act")-

and the Conduct of Elections Rules, 1961 (in short "the

Rules"). Part VI of the. Act deals with disputes regarding

elections. The following sections in Part VI are relevant :•—

"Section 80. Election petitions.—No election

shall be called in question except by an election petition

presented in accordance with the provisions of this Part.

Section

81. Presentation

of petitions.—{I)

A n

election petition calling in question any election may

be presented on one or more of the grounds specified

in sub-section (1) of Section 100 and Section 101 to

the High Court by any candidate at such election or

any elector within forty-five days from, but not earlier

than the date of election of the returned candidate or if

there are more than one returned candidate at the

election and dates of their election are different, the

later of those two dates."

Section

83. Contents

of petition,—{\)

election petition—

(a) shall contain a concise statement of the

material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt

practice that the petitioner alleged including

as full a statement as possible of the names

of the parties alleged to have committed

such corrupt practice and the dale and place

of the commission of each such practice;

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.

• _

Section 86. Trial of election petitions.—(I) The

High Court shall dismiss an election petition which does

not comply with the provisions of Section 81 or Section

82 or Section 117.

Explanation.—An order of the High Court

dismissing an election petition under this Sub-section

shall be deemed to be an order made under clause (a)

of Section 98.

(2) xx xx

(3) xx xx

Section 87. Procedure before the High Court.—

(1) Subject to the provisions of this Act and of any

rules made thereunder, every election petition shall be

tried by the High Court, as nearly as may be, in

accordance with the procedure applicable under the

Code of Civil Procedure, 1908 (5 of 1908) to the trial

202

THE GAZETTE OF INDIA: JULY 14, 2001/ASADHA 23, 1923

[PART II—SEC. 3(iii)]

of suits :

Provided that the High Court shall have the

discretion to refuse, for reasons to be recorded in

writing, to examine any witness or witnesses if it is ot

the opinion that' the evidence of such witness or

wiinesses is not material fofthe decision of petition or

that the party tendering such witness or witnesses is

doing so on frivolous grounds or with a view to delay

the proceedings.

(2) The provisions of the Indian Evidence Act,

1872 (1 of 1872), shall subject to the provisions of this

Act, be deemed to apply in all respects to the trial of an

election petition.

Section 100. Grounds for declaring election to

be void. —{1) Subject to the provisions of Sub-section

(2) if the High Court is of opinion—

(a) that on the date of his election a returned

candidate was not qualified, or was

disqualified, to be chosen to fill the seat

under the Constitution or this Act or the

Government of Union Territories Act, 1963

(20 of 1963); or

(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 returned candidate or his

election agent; or

rejected; or

(d) that the result of the election, in so far as it

concerns a returned candidate, has been

materially affected—

(i) by the improper acceptance or any

nomination, or

(ii) by any corrupt practice committed in

the interests of the returned candi-

date by an agent other than his

election agent, or

(in) by the improper reception, refusal or

rejection of any vote or the reception

of any vote which is void, or

(\\) by any non-compliance with the

provisions of the Constitution or of

this Act or of any rules or orders

made under this Act,

the High Court shall declare the election of the

relumed candidate to be void.

(2) If in the opinion of the High Court, a returned

candidate has been guilty by an agent other than his

election agent, of any corrupt practice but the High

Court is satisfied—

(a) that no such corrupt practice was committed at the

election by the candidate or his election agent, and

every such corrupt practice was committed contrary

to the orders, and without the consent, of the

candidate or his election agent;

(b) xxx

reasonable means for preventing the commi$sion

of corrupt practices at the election; and

(d) that in all other respects the election was free from

any corrupt practice on the part of the candidate

or any of his agents,

then the High Court may decide that the election

of the returned candidate is not void."

Apart from the above provisions. Section 123 in Part

VTI extensively deals with corrupt practices and electoral

offences. In addition to the above provisions, Rule 94-A of

the Rules and Form 25 arc relevant.

30. In addition to the above provisions, it is also

relevant to refer Order VII, Rule 11 C.P, C. As per clause (a)

of Rule 11 of the said Order (Order VII), where the election

petition does not disclose a cause of action, the same is liable

to be rejected. It is clear from the above provisions that the

person who desires to question the election, undoubtedly,

has to present an election petition in accordance with the

provisions of Chapter VI of the Act. The petition shall contain

one or more grounds specified in Sub-section (1) of Section

100 and Section 101 of the Act and the same has to be filed

within 45 days from not earlier than the date of the election

of the returned candidate. In the election petition the

petitioner has to state concise statement of material fact on

which the petitioner relies and also set-forth full particulars

of any corrupt practice including full statement such as the

names of the parties alleged to have committed such practice,

the date and place of commission of each such practice. The

petition shall be signed by the petitioner and verified in the

manner laid down in the Code of Civil Procedure for

verification of pleadings. If the petitioner alleges any corrupt

practice, then an affidavit in terms of Form 25 shall also be

acepmpanied. Necessary allegation of such corrupt practice

and other particulars to be mentioned in the affidavit. It is

further clear that schedule as well as annexure to the petition

shall also be signed by the petitioner to be verified in the

same manner as the petition. At the time of presenting an

election petition, llic petitioner has to deposit a sum of

Rs. 2000 as security for the costs of the petition as per Section

117 of the Act. As per Section 86 of the Act, if an election

petition which does not comply with the said provisions is

liable to be dismissed.

31. Mr R. Thaigarajan, learned senior counsel appear-

ing for the applicant and returned candidate, after talcing me

through all the averments in the election petition as well as

the above referred relevant provibioiis. of the Ac i and Ruks,

would contend that the election petitioner has not complied

203

with the mandatory requirements of Sections 81 (1), 81 (3)

and 83 (1) of the Act. He further contended that the grounds

alleged in the election petition do not constitute grounds as

contemplated under Section 100 of the Act. According to

him. it has not been pleaded how the result of the election in

so far as it concerns the returned candidate has been materi-

ally affected. For want of such pleadings, the election peti-

tion is liable to be rejected as per the catena of decisions of

the Supreme Court as well as various High Courts. He fur-

ther contended that no contemporaneous incident has been

cited in the petition disputing the correctness of the process

of the election. He also contended that the election petition

deserves to be rejected under Sections 86 and 87 of the Act

read with Order VII Rule 11 and Section 151 of the Code of

Civil Procedure. He demonstrated that the election petitioner

has no-wherc pleaded any violation or contravention of any

of the provisions of the Act or the Rules, of the commission-

ing of any corrupt practice cither by the returned candidate

or by any one with his consent affecting the result of the

election of the returned candidate. According to him, no

cause of action has been disclosed, nor any material facts

and particulars constituting the ground for interference has

been alleged; hence the election petition is liable to be dis-

missed. For want of necessary supporting affidavit being filed

b\ the petitioner, the allegation of corrupt practice is liable

to be struck off. The election petitioner has not disclosed the

source of information. In the absence of full statement of the

names of the parties alleged to have committed corrupt prac-

tices, the date and place of commissioning the alleged prac-

tice in the election petition, the same is liable to be dismissed

tis it docs not disclose any cause of action.

32. On the other hand, Mr. S, Thangasivan, learned

Counsel appcarinu for the first respondent in the application

nnd election petitioner, would contend that the petitioner has

&ci out (Kjierial fncts and full particulars in the petition and

further particulars can also be added by amendment of the

bctition under Section 86 (5) of the Act. It is further stated

thai petitioner has complied with Sections 81, 82, 93 and

117 of Hie Act and in any event, there has been substantial

jcompluincc of the mandatoiy provisions of the Act. The pc-

^itionci hns also complied with Rule 94(A) of the Rules and

^ilso form 25 of the Rules, He also conlcnded that the al-

leged defects pointed out arc curable defects and as such the

tippMcation seeking dismissal of tlic election petition on pre-

liminary grounds is not maintainable The verification in the

election pciuion. service of copies on the returned candidate

and affidavits filed bv the election petitioner arc in order.

•I'hc election petitioner has satisfied what is provided under

Order VI Rule 1 of the Code of Civil Procedure and Section

h3 of the Act by furnishing required materials in a concise

form of material facts and not the evidence by which they

lirc.to be proved There is no merit in the present application

find the same is liable to be rejected.

3T I have already referred to the particulars of vari-

ous averments made in the election petition, the necessary

averments in the present application praying for dismissal

of the election petition as it does not satisfy the mandatory

provisions of the Act. Before considering the rival conten-

tions, it is useful to refer various decisions of the Hon'ble

Supreme Court and other High Courts.

34. How the election petition has to be considered has

been dealt with by the Hon'ble Supreme Court in N. P.

Ponnuswami v.ReturningOfficer, Namakkal[(k,I. R.(39) 1952

Supreme Court 64]. In para 18, Their Lordships have held

as follows :—

"18. The points which emerge from this deci-

sion may be stated as follows : (1) The right urvote or

stand as a candidate for election is not a civil right but

is a creature of statute or special law and must be sub-

ject to the limitations imposed by it. (2) Strictly speak-

ing, it is the sole right of the Legislature to examine

and determine all matters relating to the election of its

own members, and if the legislature takes it out of its

own hands and vests in a special tribunal an entirely

new and unknown jurisdiction, that special jurisdic-

tion should be exercised in accordance with the law

which creates it."

35. In Mohinder Singh Gill v. Chief Election Com-

missioner (AIR 1978 Supreme Court 85 i), the following

observations of Their Lordships arc relevant: (para 15)

"15, Two prefatory points need to be mentioned

as some reference was made to them at the bar. Firstly,

an election dispute is not like an ordinary Us between

private parties. The entire electorate is vicariously, not

inertly, before the court. [See 1959 SCR 611 at pp,

616, 622 : (AIR 1958 SC 698 at pp, 701, 703)]. We

may, perhaps, call this species of cases collective

litigation where judicial activism assures justice to the

constituency, guardians the purity of the system and

decides the rights of the candidates. In this class of

cases, where the common law tradition is partly

departed from, the danger that the active judge may

become to some extent, the prisoner of his own

prejudices exists; and so, notwithstanding his powers

of initiative, the parties' role in the formulation of the

issues and in the presentation of evidence and argument

should be substantially maintained and care has to be

taken that the circle does not become a vicious one. as

pointed out by J. A. Jblowiez in 'Public Interest Parties

and the Active Role of the Judge in Civil Litigation¹

(ss. p. 276). Therefore, it is essential that courts,

adjudicating upon election controversies, must play a

warily active role, conscious all the time that every

decision rendered by th6 Judge transcends private

rights and defends the constituency and thedemoc<ac\

of the country."

36. inJyotiBasuv. Debt lihmal (AIR 1982 Supreme

Court 983). the following observation is relevant: (para 8)

"8. A right to elect, fundamental though it is to

democracy, is, anomalously enough, neither a

- T o ^ y ^ ±fe<X>,'- J?

204

THE GAZETTE OF INDIA : JULY 14, 2001/ASADHA 23. 1923

[PART II—SEC. 3(iiril

fundamental right nor a Common Law Right. It is pure

and simple, a statutory right. So is the right to be

elected. So is the right to dispute an election. Outside

of statute, there is no right to elect, no right to be elected

and no right to dispute an election. Statutory creations

they are, and therefore, subject to statutory limitation.

An election petition is not an action at Common Law,

nor in equity, it is a statutory proceeding to which

neither the common law nor the principles of equity

apply but only those rules which the statute makes and

applies. It is a special jurisdiction, and a special

jurisdiction has always to be exercised in accordance

with the statute creating it

It is clear from these three decisions that the Repre-

sentation of the People Act, 1951 is a complete and self con-

tained code within which must be found any right claimed

in relation to an election or election dispute. I have already

referred to the scheme of the Act. We must seek answers to

the questions within four corners of the statute.

37. In Ch. Suhha Rao v. Member, Election Tribunal

(AIR 1964 Supreme Court 1027), a Constitutional Bench of

the Supreme Court has held that an election petition is not to

be equated to an election at law or in equity, but as the rights

arc purely the creature of statute, if the statute renders any

particular requirement mandatory, the courts possess and can

exercise no dispensing power to waive non-compliance. With

reference to requirement of Sub-sections (1) and (2) and (3)

of Section 81 of the Act, Their Lordships have observed

thus. (para 14)

•

When Section 81 (3) requires an election

petition to be accompanied by the requisite number of

copies, it becomes a requirement for the presentation

of the election petition to the Commission, and

therefore a condition precedent for the proper

presentation of an election petition. If that is a

requirement of Section 81. no distinction can be drawn

between the requirements of sub-sections (1) and (2)

and of sub-section (3). We might add that if there is a

lotnl and complete non-compliance with the provisions

of Section XI (3), the election petition might not be "an

election petition presented in accordance with the

provisions of this pan" within Section 80 of the Act.

We arc therefore inclined to consider that if there hod

been such a non-compliance with the requirement of

sub-scclion (3) nor merely the Election Commission

under Section 85 but the Election Tribunal under

Section 90 (3) \\o\i\dprinia facie not merely be justified

but would be required to dismiss the election petition."

It is clear from the said decision that compliance of

sub-section (3) of Section 81 is a mandatory and the elec-

tion petition which docs not contain the mandatory provi-

sions of sub-section (3) of Section 81 is liable to be dis-

missed.

3X In Manuhhai v. Popatlal (AIR 1969 Supreme

Court 734) the Supreme Court has held that Section 83 (1)

(b) of the Act is mandatory. After referring Section 83 (1)

(b) in para 5, Their Lordships have held as follows :—

The section is mandatory. Where a

corrupt practice is charged against the returned

candidate the election petition must set forth full

particulars of the corrupt practice so as to give the

charge a definite character and to enable the Court to

understand what the charge is. The charge must be

substantially provided as laid and evidence cannot be

allowed to be given in respect of a charge not disclosed

in the particulars."

After referring Section 86 (5), the Supreme Court in

the same paragraph held thus :—

It provides that "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". In Harish

Chandra Bajpai v. Tnlola Singh, 1957 SCR 370 = (AIR

1957 SC 444) the Court held that though under the

English Law the petitioner was not obliged to give the

particulars of the corrupt practice in his petition the

difference was a matter of form and not of substance

and that under Section 83 (3) as it stood before 1955

the Court could allow an amendment introducing fresh

instances of the corrupt practice alleged in the petition.

Referring to the English practice the Court observed

at page 382

"it is sufficient if the particulars are

ordered to be furnished within a reasonable time before

the commencement of¹ the trial". Section 83 (3) has

been repealed and is now replaced by Section 86 (5)

which forbids any amendment introducing particulars

of a corrupt practice not previously alleged in the

petition Assuming that the amendment of March 7.

1967, was permissible under Section 86(5). the

question is whether the High Court rightly allowed it.

Normally an appl ication for amendment under Section

86 (5) should be made within a reasonable time before

the commencement of the trial The Court has power

to allow an amendment even after the commencement

of the trial, but as a rule leave to amend at a late stage.

should be given in exceptional cases where the

petitioner could not with reasonable diligence have

discovered the new facts earlier. Leave to amend will

not be given if the petitioner is not acting in good faith

or has kept back the facts known to him before the

trial started."

Jl is clear that amendment petition containing particu-

lars of corrupt practice not previously alleged in the petition

is prohibited.

205

39. In S. N, lialakrishna v. Fernandez (AIR 1969

Supreme Court 1201), the following conclusion of Their

Lordships is relevant: (paras 29, 35, 37 and 47)

'"29. Having dealt with the substantive law on the subject of

election petitions we may now turn to the procedural

provisions in the Representation of the People Act.

Here we have to consider Sections 81, 83 and 86 of

ihc Act. The first provides the procedure for the

presentation of election petitions. The proviso to sub- '

section alone is material here. It provides that an

election petition may be presented on one or more of

the grounds specified in sub-section (1) of Section 100

and Section 101. That as we have shown above creates

the substantive right. Section 83 then provides that the

election petition must contain a concise statement of

the material facts on which the petitioner relics 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. The section is mandatory and requires first a

concise statement of material facts and then requires

the fullest possible particulars. 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 maybe some overlapping

between material facts and particulars but the two are

quite distinct. Thus the material facts will mention that

;i 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

relumed 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 dale, 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

nol do merely to quote the words of the section because

Ihen the efficacy of the words 'material facts' will be

losi The fact which constitutes the corrupt practice

must be slated 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. Formerly the petition used to

be in two parts, The material facts had to be included

in the petition and the particulars in a schedule. It is

inconceivable that a petition could be filed without the

material facts and the schedule by merely citing the

corrupt practice from-the statute. Indeed the penalty

of dismissal summarily was enjoi'nftd for petitions

which did not comply with the requirement. Today the

particulars need not be separately included in a

schedule but the distinction remains. The entire and

complete cause, of action must be in the petition in the

shape of material facts, the particulars being the further

information to complete the picture. This distinction

is brought out by the provisions of Section 86 although

the penalty of dismissal istakenaway

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

of 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

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 arc separate

corrupt practices which cannot be said to grow out of

the material facts related to another person. .,

Itwouldappearfrom this that to make

out a complete charge the facts necessary must be

included in relation to a 'ground' as stated in the Act

Merely repeating the words of the statute is not

sufficient. The petitioner must spccif> the ground i.e..

to say the nature of the corrupt practice and the facts

necessary to make out a charge. Although it has bee"

said that the charge of corrupt practice is in the nature

of quasi criminal charge, the trial of an election petition

follows the procedure for the trial of a civil suit. The

charge which is included in the petition must, therefore,

specify- the material facts of which the truth must be

established

37. From our examination of all the coses that

were cited before us we are satisfied that an election

206

THE GAZETTE OF INDL\ : JULY 14, 2001/ASADHA 23, 1923

[PART II—SEC. 3(iii)]

petition must set out a ground or charge. In other words,

the kind of corrupt practice which was perpetrated

together with material facts on which a charge can bo

made out must be stated. It is obvious that merely re-

peating the words of the statute does not amount to a

proper statement of facts and the section requires that

material facts of corrupt practices must be stated. If

the material facts of the corrupt practice are stated more

or better particulars of the charge may be given later,

but where the material facts themselves are missing it

is impossible to think that the charge has been made

or can be later amplified. This is tantamount to the

making of a fresh petition

Inotherwords, the election petitioner

must exclude every hypothesis except that of guilt on

the part of the returned candidate or his election

agent

40. In Ilardwari Lai v. Kanwal Singh (AIR 1972

Supreme Court 515), it was held that: (paras 19,20 and 22):

"19. The requirements in an election petition as

to material facts and the consequences of lack of such

allegation of material facts came up for consideration

in this Court in the recent decision in Samant N.

lialakrishnan v. George Fernandez (1969)^ SCR 603

= (AER 1969 SC 120 l).Tn that case reference was made

to Sections 81, 83 and 86 of the Act as the procedure

provisions of election petition. Section 81 deals with

presentation of petitions. Section 83 deals with con-

tents of petitions. Section 86 deals with trial of peti-

tions. Hidayatullah, C. J. speaking for the Court laid

down these propositions. First, Section 83 of the Act-

is mandatory and requires first a concise statement of

material facts and then requires the fullest possible

particulars. Second, omission of a single material fact

leads to an incomplete cause of action and the state-

ment of claim becomes bad. Third, the function of

particulars is to present in full a picture of the cause of

action to make the opposite party understand the case

he will have to meet. Fourth, material facts and par-

ticulars are distinct matters, Material facts will men-

tion statements of fact and particulars will set out the

names of persons with the date, time and place. Fifth,

material facts 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. Sixth, in stating the

material facts it will not do merely to quote the words

of the section because then the efficacy of the material

facts will be lost. The fact which constitutes a corrupt

practice must be stated and the"fact must be correlated

to one of the heads of corrupt practice. Seventh, an

election petition without the material facts relating to

a corrupt practice is no election petition at all. A peti-

tion which merely cites the sections cannot be said to

disclose a cause of action where the allegation is the

obtaining or procuring of assistance unless the exact

type and form of assistance and the person from whom

it is sought and the manner in which the assistance is

to further the prospects of the election arc alleged as

statements of facts.

It is therefore, vital that the corrupt

practice charged against the respondent should be a

full and complete statement of material facts to clothe

the petitioner with a complete cause of action and to

give an equal and full opportunity to the respondent to

meet the case and to defend the charges. Merely, al-

leging that the respondent obtained or procured or at-

tempted to obtain or procure assistance are extracting

words from the statute which will have no meaning

unless and until facts arc stated to show what that as-

sistance is and how the prospect of election is furthered

by such assistance.

"22

The gravamen of the charge of cor-

rupt practice within the meaning of Section 123 (7) of

the Act is obtaining or procuring or abetting or attempt-

ing to obtain or procure any assistance other than the

giving of vote. In the absence of any suggestion as to

what that assistance was the election petition is lack-

ing in the most vital and essential material fact to fur-

nish a cause of action."

41. In UclhavSingh \. MadhavRao Scindia (AIR 1976

Supreme Court 744), Their Lordships have held as follows :

(paras 20, 37, 38, 39 and 40)

"20. The respondent cannot by consent, express

or tacit, waive these provisions or condone a non-com-

pliance with the imperative of Section 82 (b). Even

inaction, laches or delay on the part of the respondent

in pointing out the lethal defect of non-joinder cannot

relieve the Court of the statutory obligation cast on it

by Section 86. As soon as the non-compliance with

Section 82 (b) comes or is brought to the notice of the

court, no matter in what manner and at what stage,

during the pendency of the petition, it is bound to dis-

miss the petition in unstinted obedience to the com-

mand of Section 86.

37. Like the Code of Civil procedure, this sec-

tion also envisages a distinction between "material

facts" and "materialparticulars". Cl. (a) of sub-scc-

tion (1) corresponds to Order 6, Rule 2, while Clause

(b) is analogous to Order 6, Rules 4 and 6 of the Code,

The distinction between "material facts" and "mate-

rial particulars" is important because different conse-

quences may flow from a deficiency of such facty 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 ol

Ciyil 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

207

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

from a deficiency of material particulars, tiic wuit

has a discretion to allow the petitioner to supply the

required particulars even aifor the expiry of hmiMion

38. All the primary facts which must be proved ,

at the trial by a parly to establish the existence of a

cause of action or 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 lo 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, arc "material facts"

which must be pleaded; and failure to plead even a

single material fact amounts to disobedience of the

mandate of Section 83 (1) (a).

39. -'particulars", on the other hand, arc "the

details of the case set up by the party". "Material par-

ticulars" within the contemplation of Clause (b) of

Section 83 (1) would therefore mean a,Jl 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). "Par-

ticulars" serve the purpose of finishing touches to the

basic contours of a picture already drawn, to make it

full, more detailed and more informative,

40. The distinction between "material facts" and "ma-

terial particulars" was pointed out by this Court in several

cases, three of which have been cited at the bar. It is not

necessary to refer to all of them. It will be sufficient to close

the discussion by extracting what A.N. Ray J. (as he then

was) said on this point in Hardwari Lai's case (AIR 1964

SC I3d6) (supra).

"Ft is therefore vital that the corrupt practice

charged against the respondent should be a full and

complete statement of material facts to clothe the peti-

tioner with a complete cause of action and to give an

equal and full opportunity to the respondent to meet

the rase nnd to defend the charges Merely, alleging

thai the respondent obtained or procured or attempted

lo obtain or procure assistance im extracting words

from the statute which will have no meaning unless

and until fncts arc stated to show what that assistance

is and how the prospect of election K furthered hy such

assistance In the present case, it ws not even alleged

I hut the assistance obtained or prom red was other than

the giv £ ol vote. It was said by counsel for the re-

spondent that because the statute did not render the

giving of vote a coi nipt practice IIIL. words "any assis-

tance" were full statement of rnaunal fact. The sub-

mission is fallacious for the simple reason that the

manner of assistance, trie measure of assistance are all

various aspects. U iac\ to clothe the pctiiion with a cat*.¹

of action vvttich v> i'l tall for an answer. Material i:Ki-.

are facts which if csuibhsh-jd 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 V The answer is in the negative be-

cause the allegations in the petition did not disclose-

any cause of action."

42. In/V.C Zeliangv AjuNewmai (AIR 1981 Supreme

Court 8). Their Lordships have held that, (para 16)

"16

It is well settled that an allegation of

corrupt practice must be clearly pleaded in the peti-

tion and the particulars given in the schedule, corrupt

practice being in the nature of a fraud, it is not permis-

sible to plead one kind of fraud or o ne kind of corrupt

practice and prove another though they may be inter-

connected

-....."

43. In the case otAzhar Hussaln v. Rajiv Gandhi,

reported in AIR¹ 1986 Supreme Court 1253 (1st Rajiv

Gandhi's case), the Supreme Court has held that an election

petition can be summarily dismissed if it docs not furnish

cause of action in exercise of the powers under the Civil

Procedure Code and it is settled law that the omission of a

single material fact would lead to an incomplete cause of

action and that an election petition without the material facts

relating to a corrupt practice is not an election petition at all

In para 9, Their Lordships have held that the fact that Section

83 dpes not find a place in Section 86 of the Act does nol

mean that powers under the C.P.C. cannot be exercised. In

para 11, Their Lordships have held as follows :—

So also it emerges from the aforesaid

decision that appropriate orders in exercise of powers

under the Code of Civil Procedure can be passed if the

mandatory requirements enjoined by Section 83 of the

Act to incorporate the material facts in the election

petitionare not complied with

In Para 14, after analysing numerous decisions in re-

gard to the question as to what exactly is the content of the

expression 'material facts and particulars', which the elec-

tion petitioner stiall incorporate in his petition by virtue of

Section 83(1) of the Act, Their Lordships have summarised

thus:—

"Para I-I. (1) What are material facts and par-

ticulars ?

Material facts are facts which if established

would give the petitioner the relief asked for. The test

required to be answered is whether the Court could

have given a direct verdict in favour of the election

petitioner in case the returned candidate had not ap-

peared to oppose the election petition on the basis of

the facts pleaded in the petition. (1969) 3 SCR 217:

208

THE GAZETTE OF INDIA • JULY 14. 2001/ASADHA 23, 1923

[PART II—Sue. 3(iii)|

(AIR 1969 SC 734) — Manubhai Nandlal Amarsey

v. f'opatlal Manila! Joshi.

(2) In regard to the alleged corrupt practice per-

taining to the assistance obtained from a Government

servant, the following facts are essential to clothe the

petition with a cause of action which will call for an

answer from the returned candidate and must there-

fore be pleaded • (1972) 2 SCR 742 : (AIR 1972 SC

515 Y—Hardwari Lai v. Kairwal Singh.

(a)

mode of assistance ;

(b)

measure of assistance; and

(c)

all various forms of facts pertaining to the

assistance.

(3) In the contevt of an allegation as regards

procuring, obtaining, abetting or attempting to obtain

or procure the assistance of Government servants in

election it is absolutely essential to plead the follow-

ing:

(a)

kind or form of assistance obtained or pro-

cured:

(b)

in what manner the assistance was obtained

or procured or attempted to be obtained or

procured by the election candidate for pro-

moting the prospects of his election. (AIR

1972 SC 315)

(4)

The returned candidate must be told as to

what assistance he was supposed to have sought, the

type of assistance, the manner of assistance, the time

of assistance, the persons from whom the actual and

specific assistance was procured (AIR 1972 SC 515).

(5)

There must also be a statement in the elec-

tion petition describing the manner in which the pros-

pects of the election was furthered and the way in which

the assistance was rendered. (AIR 1972 SC 515)

(supra).

(6)

The election petitioner must state with

exactness the time of assistance, the manner of

assistance, the persons from whom assistance was

obtained or procured, the time and date of the same,

.ill these will have to be set out in the particulars. (AIR

1972 SC 515) (supra).

44. lnthzcnsconihagwatiPrasadDtxIt 'Gfwrewala'

v Rajeev Gandhi, reported in AIR 1986 Supreme Court 1534

(2nd Rajiv Gandhi's case), it was stated in para 4 that:

'4. It is now well-settled that in election petitions

pleadings have to be precise, specific and unambiguous

and if the election petition does not disclose a cause of

action it is liable to be rejected in limine

45. In the case of Dhartipakar v. Rajiv Gandhi, re-

ported in AIR 1987 Supreme Court 1577 (third Rajiv

Gandhi's case). Their Lordships have held thus: (para 8)

Section 86 confers power on the High

Court to dismiss an election petition which does not

comply with the provisions of Sections 81 and 82 or

Section 117 Section 87 deals with the procedure to be

followed in the trial of the election petition and it lays

down that subject to the provisions of the Act and of

any rules made thereunder, even- election petition shall

be tried by the High Court as nearly as may be in

accordance with the procedure applicable to the trial

of suits under the Code of Civil Procedure, 1908. Since

provisions of Civil Procedure Code apply to the trial

of an election petition. Order VI. Rule 16 and Order

VII, Rule 17 arc applicable to the proceedings relating

to the trial of an election petition subject to the

provisions of the Act. On a combined reading of

Sections 81, 83. 86 and 87 of the Act, it is apparent

that those paras of a petition which do not disclose

any cause of action, are liable to be struck off under

Order VI, Rule 16, as the Court is empowered at any

stage of the proceedings to strike out or delete pleadings

which is unnecessary, scandalous, frivolous or

vexatious or which may tend to prejudice, embarrass

or delay the fair trial of the petition or suit. It is the

duty of the court to examine the plaint and it need not

wait till the defendant files written statement and points

out the defects. If the Court on examination of the plaint

or the election petition finds that it does not disclose

any cause of action it would be justified in striking out

the pleadings. Order VI, Rule 16 itself empowers the

Court to strike out pleadings at any stage of the

proceedings which may even be before the filing of

the written statement by the respondent or

commencement of the trial. If the Court is satisfied

that the election petition does not make out any cause

of action and that the trial would prejudice, embarrass

and delay the proceedings, the court need not wait for

the filing of the written statement instead it can proceed

to hear the preliminary objections and strike out the

pleadings. If after striking out the pleadings the court

finds that no triable issues remain to be considered, it

has power to reject the election petition under Order

VI. Rule 11."

Their Lordships have further held in para 11 as

follows :—

"11

If the allegations contained in the

petition do not set out grounds of challenge as

contemplated by Section 100 of the Act and if the

allegations do not conform to the requirement of

Sections 81 and 83 of the Act, the pleadings are liable

.to be struck off and the election petition is liable to be

rejected under Order VII Rule 11. A pleading if vague

and general is embarrassing. If the allegation contained

in the election petition even assuming to be true and

correct do not make out any case of corrupt practice or

any ground under Section 100 of the Act, the pleading

would be unnecessary, frivolous and vexatious. It is

209

always open to strike out the same, If after striking out

defective pleadings the Court finds that no cause of

action remains to be tried it would be duty bound to

reject the petition under Order VII, kule 11, Civil

Procedure Code. If a preliminary objection is raised

before the commencement of the trial, the court is duty

bound to consider the same it need not postpone the

consideration for subsequent stage of the trial.

In para 14, Their Lordships have held thus :—

"14

Section 83 lays down a mandatory

provision in providing that an election petition shall

contain a concise statement of material facts and set

forth full particulars of corrupt practice. The pleadings

are regulated by Section 83 and it makes it obligatory

on the election petitioner to give the requisite facts,

details and particulars of each corrupt practice with

exactitude. If the election petition fails to make out a

ground under Section 100 of the Act it must fail at the

threshold. Allegations of corrupt practice arc in the

nature of criminal charges, it is necessary that there

should be no vagueness in the allegations so that the

returned candidate may know the case he has to meet.

If the allegations are vague and general and the

particulars of corrupt practice are not stated in the

pleadings, the trial of the election petition cannot

proceed for want of cause of action. The emphasis of

law is to avoid a fishing and roving inquiry. It is

! therefore necessary for the Court to scrutinise the

pleadings relating to corrupt practice in a strict

manner."

IThcir Lordships have further held in para 20 as fol-

lows :\—

"20

In order to constitute a corrupt

practice as contemplated by Sections 77 and 123 (6) it

is necessary to plead requisite facts showing

authorisation, or undertaking of reimbursement by the

candidate or his election agent. A mere vague and

general statement that the ca ndidatc and his workers with

hi's consent spent money in election in excess of the

permissible ceiling would not be sufficient to constitute

corrupt practice.

I 21

It is thus evident that unless the alle-

gations are specific that the candidate or his election

ageint authorised the expenses before the money .was

actually spent and that the candidate or his election

agent reimbursed or undertook to reimburse the same

the necessary ingredient of corrupt practice would not

be complete and it would provide no cause of action

to pl^ad corrupt practice

46. in hianohar Joshi v. DamodarTatyaha, reported

•l (1991) 2; Supreme Court Cases 342, Their Lordships, af-

r referring to Sections 82 and 83 of the Representation of

ie People Act. 1951, has held as^follows: (para 9)

''9. It is clear from the reading of these two

sections that even in the election petition where

allegations of corrupt practices are made, full particulars

of the alleged corrupt practices including as full a

statement as possible and the names of the parties who

arc alleged to have committed such practice and the date

and place of the commission of each such practice have

to be furnished. What is further, the allegations of the

corrupt practice have to be accompanied by an affidavit

in support both of the allegations as well as the

particulars thereof, and if there are any schedules or

annexurcs to the petition in support of the corrupt

practice, they have also to be signed by the petitioner

and verified by him in the same manner as the petition.

This is a mandatory requirement. The object of the said

provisions is obvious. The party, and it includes not only

the returned candidate but all other candidates against

whom the corrupt practice is alleged, must have

an adequate notice of the precise allegations made

against him so that he has a proper opportunity to meet

them."

After referring to notice issued by Court under Sec-

tion 99 of the Act, the Supreme Court has held when a no-

tice is issued under Section 99 against a person who is not a

party to the election petition for holding him guilty of any-

corrupt practice, the notice should not apprise him of the

precise charge against him and give him the full particulars

thereof. The Supreme Court has also held that it is a precon-

dition for the trial of the charges of the corrupt practices that

the person called upon to face the charge should be apprised,

in advance, of the precise charge or charges against him and

also the precise evidence—oral or documentary, which is

sought to be relied upon in support of the said charge or,

each of the said charges.

• 47

Jn A'.C Matlhm'a Kurup v. Muraleedharan,

reported in AIR 1991 Kerala 20, K.G. Balakrishnan, J. (as

His Lordship then was) has reiterated by quoting the various

decisions of the Supreme Court that an election petition, where

allegations of corrupt practices are imputed must be regarded

as a proceeding of quasi-criminal nature wherein strict proof

is necessary and the pleadings of the election petitioner in his

petition should be absolutely precise and clear, containing

all necessary details and particulars as required by law. His

Lordship has further held that the allegations in the election

petition should not be vague, general in character or lack

material particulars. His Lordship has also held that from

Section 83 of the Act it is clear that all preliminary facts which

must be proved to establish the existence of a cause of action

shall be stated in the petition. His Lordship has further held

that 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.

His Lordship has also held that: (para 2)

"2. The Supreme Court has consistently taken the view

that an election petition can be and must be dismissed

under the provisions of Civil Procedure Code if the

210

THE GAZETTE OF INDIA: JULY 14, 200 I/ASADHA 23,1923

[PART II—SEC. 3(iii)l

mandatory requirements enjoined by Section 83 to

incorporate the material facts and particulars relating

lo alleged corrupt practice are not complied with. By

virtue of Section 87 of the Act the provisions of the

C.P.C. are made appIi-'We.fof the trini of an election

peiilton

Therefore, it is clear that an

election petition i<; "*.' z taimrnariiy rejected where it

fails to furnish a cause of action."

Wilh regard lo use of more motor vehicles, His

Lordship has held lhat, (para 4)

The allegations contained in paragraph 3(a)

(ii) of the election petition do not specifically say that

motor vehicles were procured and used for the free

conveyance of electors. It is also important to note that

not a single specific instance has been quoted by the

petitioner. A taxi cab number is mentioned in the

petition but it is not specified as to who were all the

ekciors given conveyance to or from polling station.

The allegations are too vague and general and that the

respondent may not be in a position to defend the same

effectively. The allegations are not capahje of raising a

cause of action

The non-prodiictionofa proper affidavit

is violation of Section 83 of the Act

48. \nNarain Chand Prasher v. Prcm KumarDhumal,

reported in AIR 1093 Himachal Pradesh 84, a Single Judge

of the Himachal Pradesh High Court,while dealing wjth the

similar preliminary objection, has considered almost all the

decisions of the Supreme Court from 1954 to 1993. As regards

Section 81(3) of the Act, he observed in (lie following manner

: (para 39 and 40)

"39 The madatory requirement of sub-section (.3) of

Section 81 of the Act is in two parts. The first part

provides that even election petition shall be

accompanied bv as many copies thereof as there are

respondents mentioned in the petition and the second

part deals with the manner in which such copies shall

be attested by the petitioner under his own signature to

be irue copv Since these nrr mandatory provisions the

srune must be fulfilled exactly as provided in law but

in so for as directory provisions arc concerned it is

sufficient if the) are substantially complied with

"40. The question that when a document referred to

and attached to the election petition would become an

integral part or be merely a piece of evidence and a

proof of the allegations contained therein, came up for

consideration in A/ Kanmamdhl v. H, V. Handa, AIR

1983 SC 558. Photographs, which were produced in

court, copies of which were not supplied to the opposite

part>' were held to form an internal part of the election

petition and not merely a piece of evidence, where

allegations were based on photograph. Failure to supply

copies of photograph was held to be amounting to

violation of Section 8 i( <)of the Act..."

With regard to improper reception or rejection of voles or

reception of votes which were void, the learned Judge has

held as follows : (para 63)

"63

Necessity of giving such facts, which are

materil facts, .such as number of ballot papers, the

precise objection with regard to each of such ballot

paper has been to be a part of statement of material

fact, in the absence of which, any averment of the

acceptance or reception of votes or reception of vote to

be void will not give rise to a triable cause of action."

49 In Subhash Desni v. Slwrtid'J. Pao, reported in

AIR 1994 Supicme Court 2277, while dealing wilh the scope

of Section 83 of the Act, Their Lordships have held as

follows : (para 11)

"11

But Section 83 enjoins that an election petition

shall contain concise statement of material facts, and

shall set forth full particulars of any corrupt practice

that the petitioner alleges, which should be verified and

supported by affidavit, so far the allegations of-corrupt

practices arc concerned. This provision is not only

procedural, but has an object behind it; so that a person

declared lo have been elected is not dragged to court to

defend and support the validity of his election, on

allegations of corrupt practice which arc not precise

and details whereof have not been supported by a proper

affidavit. Apart dom that, unless the material facts and

full particulars, of the corrupt practices are set forth

properly in the election petition, the person whose

election is challenged is bound to be prejudiced in

defending himself of the charges, which have been

levelled against him. In view of the repeated

pronouncements of this Court, that the charge of corrupt

practice is quasi criminal in nature, the person

challenging an election on the giound of corrupt

practice, cannot take libuiy of making auy vague or

reckless allegations, without taking the responsibility

about the coirectness thereof... Before the Court

proceeds to investigate such allegations, the Court tnust

be satisfied, that tl'.c material facts have been stated

along with the full particulars of the corrupt practice,

alleged by the petitioner, which have been duly

supported by ?,n affidavit. In cases where the Court finds

that neither material facts have been stated, nor full

particulars of the corrupt practice, as required by Section

83 have been furnished in the election petition, the

election pciiliou ran be dbiaiiscd, not wider Section

86, but under the provisions of the Code of Civil

Procedure, which ore applicable, read with Section

83(1) of the Act, saying that it does not disclose a cause

of action.. .."

50, buhccisz of IqbulSingh v. AvtarSingh, reported

in 1994 Supp(2) Supreme Court Cases 746. it has been held

that Law is well settled that the proccedi ngs in election mattci

are not pH-ecedings which ore .kcif!..d na .^sumption ;uk

suspicion, however strong, cannol take the place of proof.

21]

51. In the case of Gajanan Krlshnajl Bapat v. Dattaji

Raghobaji Meghe, reported in AIR 1995 Supreme Court 2284,

the Supreme Court has held that Section 83 of the Act has

been held to be mandatory and requires first a concise

statement of material facts and then the full particulars of the

alleged corrupt practice so as to present a full picture of the

cause of action. As regards the provisions of Sections 123 (6)

and 77 of the Act, the Supreme Court has held that: (para

21)

"...From a plain reading of Sections 123(6) and 77

including Explanation 1 to Section 77 of-the Act, it is

therefore clear that in order to be a corrupt practice, the

excessive expenditure must be incurred or authorised

by the candidate or his election agent... "

52. InRamakantMayekarv. CelineD'Sitva, reported

in (1996) 1 Supreme Court Cases 399, in regard to non-supply

of photographs, the Supreme Court has held thus: (para 21)

"21. If the mere mention of photographs without

indicating their contents in the election petition is to be

construed as incorporation of their contents by reference

in the election petition, then non-supply of the copy of

the photographs with the copy of the election petition

would result in non-compliance of Section 81(3),

However, since the photographs were not annexed to

the election petition, it is a case not of non-compliance

of Section 81(3) but a case of total absence of any

pleading in the election petition of the corrupt practice

on the bnsis of wall paintings. Therefore, the pleading

being wholly deficient in material facts necessary to

constitute the cause of action, it was insufficient to raise

a triable issue on that basis, In fact, this part of the

pleading was liable to be struck out since it was

irrelevant at the trial for the reason stated, It is clear

that any cvidance adduced later, in the absence of the

requisite pleading of this corrupt practice was irrelevant

and inadmissible and should not have been recorded

and having been recorded must be excluded from

consideration

With regard to issue rekiting to the corrupt practice

oased on the video cassettes, the Supreme Court in para 30

has held as follows ;

"30. This state of pleading relating even to the video

cassettes, when the video cassettes or its transcript were

not produced along with the election petition or its copy

furnished with the copy of the election petition to the

appellant, is a serious defect in the pleading which once

again has been totally overlooked at the trial of this

election petition, This again has resulted in raising an

issue for which the requisite pleadings were not there

and then admitting considerable evidence which is

irrelevant and inadmissible

53 I n 1 tnnnharJoshi v. N. B. Patil (AIR 1996 Supreme

•i.'ourt 796). niih regard to non-supply of copy of the document

with a copy of the election petition to the respondent, the

Supreme Court has held thus : (para 23)

"23. The distinction brought out in the above decisions

is, that in a case where the document is incorporated by

reference in the election petition without reproducing

its contents in the body of the election petition, it form*

as an integral part of the petition and if a copy of that

document is not furnished to the respondent with a copy

of the election petition, the defect is fatal attracting

dismissal of the election petition under Section 86(1)

of the RP. Act. On the other hand, when the contents

of the document are fully incorporated in the body of

the election petition and the document also is filed with

the election petition, not furnishing a copy of the

document with a copy of the election petition in which

the contents of the document are already incorporated,

does not amount to non-compliance of Section 81(3)

to attract Section 86(1) of theR.P. Act

54. In Shipra v, Shanti LaiKhoiwal reported in (ATR

.1996 Supreme Court 1691), it has been held that copy of

affidavit supplied to the respondent without attestation by

prescribed authority cannot be considered as 'true copy' of

election petition.

55. Inthecaseofvl/i///?. Deshmukh\.OnkarN. Wagh,

reported in (1999 AIR SCW 338), the Supreme Court has

held as follows : (para 17)

"17

We have already referred to the fact that even

before arguments were heard on the preliminary

objection by the High Court in this case the true copies

of the affidavits had been served on the first respondent

and his counsel. In the facts and circumstances of this

case, we have no doubt that there was sufficient

compliance of the provisions of Section 81(3) read with

Section 83(l)(c) of the Act even if it could be said that

the copies served in the first instance on the first

respondent were not in conformity with the provisions

of the Act

56. In T.M. Jacob v. C. Poulose (AIR 1999 Supreme

Court 1359), the Constitution Bench of the Supreme Court

has held as follows ; (para 45)

"45. In our opinion it is not every minor variation in

form but only a vital defect in substance which can

lead to a finding of non-compliance with the provisions

of Section 81(3) of the Act with the consequences under

Section 86( 1) to follow. The weight of authority clearly

indicates that a certain amount of flexibility is

envisaged. While an impermissible deviation from the

original may entail the dismissal of an election petition

under Section 86( 1) of the Act, an insignificant variation

in the true copy cannot'bc construed as a fatal defect. It

is, however, neither desirable nor possible lo catalogue

the defects which may be classified as of a vital nature

or those which are not so. It would depend upon the

facts and circuinslanu;s of each case and no hard and

fast formula can be prescribed, The tests suggested in

<%?• feV^Z/J!f--'/ — j

212

THE GAZETTE OF INDIA: JULY 14, 2001/ASADHA 23, 1923

[PART II—SEC. 3(iii)J

Murarka Radhey Shyam's case (AIR 1964 SC 1545)

(supra) are sound tests and are now well settled We agree

with the same and need not repeat those tests..."

57. In Mahendra Pal \. Ram Doss Malanger (1999 AIR

SCW 4130), the Supreme Court has held as follows: (para 7)

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. In

the case of a petition suffering from deficiency of

materialpartiqvtprs the Court has the discretion to allow

the petitioner to supply the required petitioner to supply

the required particulars even after the expiry of

limitation. Thus, whereas it may be permissible for a

party to furnish particulars even after the period of

limitation for filing an election petition has expired,

with permission of the Court, no material fact unless

already pleaded, can be permitted to be introduced, after

the expiry of the period of limitation."

58. inJeetMohinderSinghv. HammderSingiJassi(1999

AIR SCW 4361). Their Lordships have held as follows :

(para 46)

"46. ... Here itself, we may observe that material facts

and particulars as to commission of corrupt practice

are required to be given in the election petition and not

in the replication filed much after the expiry of period

of limitation for filing election petition. The material

facts and particulars alleged for the first time in the

replication and not forming part of averments made in

the election petition cannot be tried and cannot be made

subject matter of issues framed by the Court...."

59. In hlahant Ram Prakash Doss v. Ramesh Chandra

(1999 AIR SCW 4784), in the absence of any specific

averment or complaint against the Returning Officer or his

staff and in the absence of any specific irregularity in the

election petition, the Supreme Court has come to the

conclusion that those allegations are hopelessly vague.

60. In the case of V. Narayanaswamy v, C.P.

Thirimaviikkarasu (2000 AIR SCW 225), it has been held as

follows : (para 24)

"24

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

his source of information in respect of the commission

of corrupt practice. He must state which of the

allegations are true to his knowledge and which to his

belief on information received and believed by him to

be true. It is not the form of the affidavit but its substance

that matters..."

61. In U, Karunanidhi v. H.V. Handa (AIR 1983

Supreme Court 558). with regard to failure to enclose

photograph as averred in the petition, the Supreme Court has

held thus: (paras 41 and 42)

"41. It is obvious that the photograph was a part of the

averment contained in paragraph 18(b). In the absence

of the photograph the averment contained in paragraph

18(b) would be incomplete. The photograph referred

to in paragraph 18(b) was therefore an integral part of

the election pctitioa It follows that there was total non-

compliance with the requirements of sub-section(3) of

Section 81 of the Act by failure to serve the appellant

with a copy of the election petition. In Ch, Subbarao '$

case (AIR 1964 SC 1027), the Court held that if there

is a total and compete non-compliance with the

provisions of sub-section(3) of Section 81, the election

petition could not be treated an "election petition

presented in accordance with the provisions of this part"

within the meaning of Section 80 of the Act Nerely

alleging that the appellant had put up faency banners

would be of no avail unless there was a description of

the banner itself together with the slogan.

42. The conclusion is irresistible that the words "copies

thereof in sub-section (3) of Section 81 read in the

context of sub-section (2) of Sec. 83 must necessarily

refer not only to the election petition proper but also to

schedules or annexures thereto containing particulars

of any corrupt practice alleged therein. That being so,

we are constrained to revarse the judgment of the High

Court insofar as it holds that the photograph of the fancy

banner adverted to in paragraph 18(b) could not be

treated to be integral part of the election petition but

was merely a piece of evidence as to the nature and

type of fancy banner erected by the appellant and

therefore failure to supply a copy of the photograph to

the appellant did not amount to a violation of the

provisions of sub-section (3) of Section 81 of the Act."

62. In Ravinder Singh v. Janmeja Singh [(2000), 8

Supreme Court Cases 191] the following conclusion of Their

Lordships is relevant: (paras 10 and 11)

"10. Proviso to Section 83(1) of the Act lays down, in

mandatory terms, that where an election petitioner

alleges any corrupt practice, the election petition shall

also be accompanied by an affidavit, in the prescribed

form, in support of the allegations of such practice and

the particulars thereof. The affidavit, which has been

filed in support of the election petition, does not at all

deal with the charge of bribery falling under Section

123( 1) of the Act. Leaving a side the questions that the

affidavit is not even in the prescribed form—Form 25

of the conduct of Elections Rules, the allegations of

corrupt practice made in the election petition are not

supported by the otherwise defective affidavit either.

All the names of the informants which have been given

in the affidavit relate to the corrupt practice under

Section 123(4) and the affidavit in this respect is a

verbatim reproduction of the verification clause of the

election petition concerning corrupt practice under

Section 123(4). No name of any informant has been

213

mentioned in respect of the allegations of corrupt

practice under Section 123(1) in the affidavit. In the

absence of the requisite affidavit filed in support of the

allegation of corrupt practice under Section 123( I) of

the Act. as detailed in the election petition, no issue

could be raised for trial.

11. Section 83 of the Act is mandatory in character and

requires not a only concise statement of material facts

and full particulars of the alleged corrupt practice, so

as to present a full and complete picture of the action to

be detailed in the election petition but under the proviso

to Section 83(1) of the Act, the election petition

levelling a charge of corrupt practice is required, by

law, to be supported by an affidavit in which the election

petitioner is obliged to disclose his source of

information in respect of the commission of that corrupt

practice. The reason for this insistence is obvious. It is

necessary- for an election petitioner to make such a

charge with full responsibility and to prevent any fishing

and roving inquiry and save the returned candidate from

being taken by surprise. In the absence of proper

affidavit, in the prescribed form, filed in support of the

corrupt practice of bribery, the allegation pertaining

thereto, could not be put to trial—the defect being of a

fatal nature."

63. It is also my duty to refer the decisions referred to

by Mr. S. Tlwnga Sivan, learned counsel appearing for the

election petitioner. He very much relied on a decision in

Murarka Radhey Shyam v. Roop Singh (AIR 1964 Supreme

Court 1545), wherein Their Lordships have held thus: (para

i8)

It seems clear to us that reading the relevant

sections in part VI of the Act, it is impossible to accept

the contention that a defect in verification which is to

be made in the manner laid down in the Code of Civil

Procedure, 1908 for the verification of pleadings as

required by cl. (c) of sub-section (1) of Section 83 is

fatal to the maintainability of the petition."

With regard to objection in respect of the affidavit

accompanied the petition in support of corrupt practices, the

Supreme Court in paragraph 13 referred to the view of the

Election Tribunal in the following manner:

"13. . .

. The verification of the affidavit of the

petitioner is apparently not in the prescribed form but

reading as a whole the verification carries the same

sense as intended by the words mentioned in the

prescribed form. The mistake of the Oaths

Commissioner in verifying the affidavit cannot be a

sufficient ground for dismissal of the petitioner's

petition summarily, as the provisions of Section 83 arc

not necessarily to be complied with in order to make a

petition valid and such aifidavit can be allowed to be

filed at a later stage also."

After referring to the conclusion of the Election

Tribunal (he Supreme Court lias approved the same and held

that :

"This view of the Eleciioti Tribunal was affirmed by

the High Court. We agree with the view expressed b\

the Election Tribunal and we do not think that the defect

in the verification due lo inexperience of the Oaths

Commissioner is such a fatal defect as to require the

dismissal of the election petition."

Regarding the defect as to the time and place of

verification, the Supreme Court has held that it is not a fatal

defect. It further held that it is a matter which comes within

clause (c) of sub-section (1) of Section 83 and that the defect

can be remedied in accordance with the principles of the

Code of Civil Procedure relating to the verification of

pleadings-

64. InH.D.Revarmav G. Puttaswamy Gowda [(1999)

2 Supreme Court Cases 217|, the Supreme Court has held

thus' (para 14)

"14

Section 86 provides for dismissal of an election

petition in limine for non-compliance with Sections 8).

82 and 117. Section 81 relates to the presentation of an

election petition. It is not the case of the appellant before

us that the requirements of Section 81 were not

complied with though in the High Court, a contention

was urged that a true copy of the election petition was

not served on the appellant and thus the provisions of

Section 81 were not complied with. Sections 82 and

117 are not relevant in this case. Significantly, Section

86 does not refer to Section 83 and non-compliance

with Section 83 does not lead to dismissal under Section

86. This Court has laid down that non-compliance with

Section 83 may lead to dismissal of the petition if the

matter falls witliin the scope of Ordcr6 Rule 16 or Order

7 Rule 11 C.P.C. Defect in verification of the election

petition or the affidavit accompanying the election

petition has been held to be curable and not fatal"

Mr. S. Thanga Sivan has very much relied on the

following observations of Their Lordships in para 23 which

read thus:

"23. This Court has repeatedly pointed out the

distinction between "material facts" and "particulars".

Insofar as "material facts" arc concerned, this Court

has held that they should be fully set out in the election

petition and if any fact is not set out, the petitioner

cannot be permitted to adduce the evidence relating

thereto later, nor will he be permitted to amend the

petition after expiry of the period of limitation

prescribed for an election petition. As regards

particulars, the consistent view expressed by this Court

is that the petition cannot be dismissed in limine for

want of particulars and if the court finds that particulars

are necessary, an opportunity should be given to the

petitioner to amend the petition and include the

particulars. The Constitution Bench in Balwan Singh

214

THE GAZETTE OF INDIA : JULY 14, 2001/ASADHA 23, 1923

[PART II—SEC. 3(iii)l

v. Lakshmi Narain \ \\A l%0 SC 770 • (Vm) 3 SCH

'){.)] held that an election petition was not liable to be

dismissed in liminc mereh because full particulars of

n corrupt practice -illeped were not set out. It was

observed that if an objivtion w(;s taken and the tribunal

was of the view that particulars has not been set out,

ihe petitioner had i* v>? given an opportunity to amend

or amplify the particulars and that it was only in the

cvcnl of non-compliance with the order to supply the

particulars, the charge could be struck out."

I'hc follow ing conclusion in para 27 is also relevant:

"'27 The test in all cases of preliminary objection is to

see whether any of the reliefs prayed for could be

granted to the petitioner if the averments made in the

petition are proved to be true. If the answer to the

question is in the affirmative, the maintainability of the

petition has to be upheld. .. "

65, In T M. Jacob v. C. Poulase [(1999) 4 Supreme

Court Cases 274J, after referring to the object of serving

a true copy' of an election petition and the affidavit on

the respondent, the meaning of the expression 'copy¹ in

Section 81(3) of the Act and after verifying the served

copies of the returned candidate. Their Lordships have

held that: (para 37)

"37. ... It is not denied that the copies of the election

petition and the affidavit served on the appellant bore

the signatures of Respondent 1 on every page and the

original affidavit filed in support of the election petition

had been properly signed, verified and affirmed by the

election petitioner and attested by the Notary- There

has, thus, been a substantial compliance with the

requirements of Section 81(3) read with the proviso to

Section 83(1 )(c) of the Act. Defects in the supply of

true copy under Section 81 of the Act may be considered

to be fatal, where the party has been misled by the copy

on account of variation of a material nature in the

original and the copy supplied to the respondent The

prejudice caused to the respondent in such cases would

attract the provisions of Section 81(3) read with Section

86(1) of the Act. The same consequence would not

lollow from noit-coinplaince with Section 83 of the

Aci."'

66. In Anil R. Deshmukh v. Onkar N. Wagh [(1999) 2

Supreme Court Cases 205], Their Lordships have held as

follows : (para 17)

•17. ... We have already referred to the fact that even

before arguments were heard on the preliminary

objection bv the High Court in this case, the true copies

of the affidavits hr\d been served on the first respondent

and his counsel. In the facts and circumstances of this

case, we have no doubt that there was sufficient

compliance with the provisions of Section 81(3) read

with Section 83(1 )(c) of the Act even if it could be said

that the copies served in the first insure., >v> ib" f;r.<

icspondcnt were not in conformity with the provisions

of the Act... "

67. \nMiihcndra Palv. Pant DassMalanger [(2000) 1

SujJivme Court Cases 2b 1 |. ihe learned counsel forthc election

pi'. i !> oner Vis very naich relied on the following observation

of Their Lordships ; (para 7)

"7.... Whether in an election petition, a particular fact

is material or not and as such required to be pleaded is

a question which depends upon the nature of the charge

levelled and the facts and circumstances of each case.

The distinction between "material facts" and

"particulars" has been explained by this Court in a large

number of cases and we need not refer to all those

decided cases. Facts which arc essential to disclose a

complete cause of action are material facts and are

essentially required to be pleaded. On the oilier hand

"particulars" are details of the case set up by the party

and are such picas which are necessary to amplify, refine

or explain material facts... "

68. In the light of the pleadings of the election petitioner

and returned candidate, statutory provisions and various

judicial pronouncements, n6w I shall consider whether the

election petitioner has complied with the mandatory

requirements of the Representation of the People Act, 1951.

Before considering the contents of the election petition, it is

but proper to find out whether the election petition, affidavit,

verification annexures are in accordance with the provisions

contained in the Act and the Rules made thereunder. There is

no dispute that the election petition has been filed within the

statutory period of limitation as prescribed in sub-section (1)

of Section 81. Thou eh the election petitioner has raised

several grounds in terms of Section 100 of the Act, I shall

consider whether they come under the scope of "triable

issues" or not ? at a later point of time. As per Sub-section

(3) of Section 81 of the Act, the election petitioner has filed

as many copies of the petition as there are respondents

mentioned in the petition. He has attested those copies under

his own signature certifying that those copies arc true copy

of the petition. Though learned counsel for the returned

candidate has contended that the returned candidate was

served only with zcrox copy ol the petition and the same has

not been signed and attested by the election petitioner, a

perusal of the material papers shows that the returned

candidate and other respondents were duly served with copies

of the election petition authenticated by the petitioner himself.

I n the counter affidavit filed by the election petitioner in O. A.

No, 1190 of 2000, particularly in para 10, it is specifically

stated that he had furnished required number of copies of the

election petition as contemplated in Section 81(3) of the Act

and he had attested u> h pnrl cvei.v copy wul> Ms own

signature as true copy, in compliance with Section 81(3) of

the Act, It is also stated that he had filed necessary affidavit

in the prescribed form in compliance of Section 83( l)(c) and

Section S3 (2) of Ihe Act Ainng with the jk.,tk>n pctitscn, tlv

election petitioner has iilci an alluhvii wt<crcm it is stated

215

i hat •

"the averments regarding incurring of election

expenditure by the 1st respondent in excess of the

prescribed limit under Section 77(3) and other corrupt

and mal -practices detailed in paragraphs 7 to 26 of the

election petition filed by me are true to my knowledge

and belief."

Again it is suited that,

"I further state that the averments regarding the

mal-practiccs and corrupt practices committed by the

1 st respondent detailed in paragraphs 7 to 26 of the

election petition filed by me are true to my knowledge

and the informations received from my election agents."

As per Section 83( l)(c) of the Act, an election petition

must be signed by the petitioner and it is also required to be

verified in the manner indicated in the Code of Civil Procedure

for verification of pleadings. It is the contention of the returned

candidate that the verification mentioned in the election

petition referred to above is not in accordance with the said

provision, hence the same is liable to be rejected. As rightly

contended, the said verification does not specify as to which

of the paragraph or paragraphs or which part of the said

paragraphs arc verified by the election petitioner from his

knowledge and which of the said paragraphs or part of the

paragraph-; arc \ cnfied from the information received. The

election petitioner has also not specified or verified as to the

source from which information was received. However, the

Courts have taken a view that, if there is defect in the

\ crification. on thai ground the election petition cannot be

dismissed in liminc. 1 have already observed that the election

petitioner has duly signed and verified in the same manner as

HI the petition. To this extent, he has complied with the

mandatory requirement. However, though the election

petitioner has raised certain important allegations with regard

lo taking photographs, tampering of lock wherein the ballot

boxes had been slorcd and video cassettes said to have been

taken when Chief Ministci Mr. M. Karunanidhi and Mayor

ofChcnnai Cit\ Mr. Stalin addressed public meetings in the

Vclloic constituency, admittedly, the Copies of photographs

and video cassettes have not been sent along with the notice

lo the returned candidate. As obsencd by Their Lordships of

Die Supreme Conn in IW] (2) S.C.C. 342 (cited supra), it is

a precondition for the trial of the charges of the corrupt

practices that the person called upon to face the charge should

be apprised, in advance, of the precise charge or charges

against him and also the precise evidence—oral and

documentary, w hich is sought to be relied upon in support of

i the said charge or each of the said charges In the absence of

! supph of copies of photographs and video cassettes, I am of

the \ lew that the election petitioner has not complied with

the mandatory provisions of the Act, 1 have already referred

I id the decision of ihc Supreme Court in (1996) 1 S.C.C, 399

'i.ilcd supM) icjvwihnp non-compliance of Section 81(3),

i|.Mrti..ubrl> non-supply of copy of the photographs with the

"op'i of the election petition Since the photopraphs were not

annexed to the election petition, it is the case of non-

compliance of Section 81(3). Any evidence adduced later in

the absence of requisite pleading of the corrupt practice as

well as compliance of mandatory provision is irrelevant and

inadmissible. As observed by Their Lordships in para 30 of

lire above decision, when the video cassettes or its transcript

were not produced along with the election petition or its copy

furnished with the copy of the election petition to the returned

candidate, is a serious defect in the pleading. As observed in

AIR 1996 Supreme Court 796 (cited supra), in a case where

the document is incorporated by reference in the election

petition without reproducing its contents in the body of the

election petition, it forms an integral part of the petition and

if a copy of that document is not furnished to the returned

candidate with a copy of the election petition, the defect is

fatal attracting dismissal of the election petition under Section

86(1) of the Act. As observed by me already, the election

petitioner has not furnished copy of those documents along

with the election petition to the returned candidate. In view

of the averments in paras 7,10 and 16 relating to photographs

and video cassettes, the said paragraphs would be treated as

incomplete. In such a circumstance, as observed in 1983 S.C.

558 (cited supra), the videos and photographs referred to in

paras 7.10 and 16 were therefore, integral parts of the election

petition. It follows that there was total non-compliance with

the requirements of sub-section (3) of Section 81 of the Act

by failure to serve the copies of those documents on the

returned candidate with a copy of the election petition, As

observed in AIR 1964 Supreme Court 1027 (cited supra), if

there is a total and complete non-complaince with the

provisions of Section 81(3), the election petition could not

be treated as "election petition" presented in accordance with

the provisions of Part VI within the meaning of Section 80 of

the Act. Further, the words "copies thereof in sub-section

(3) of Section'81 read in the context of sub-section (2) of

Section 83 must necessarily refer not only to the election

petition pro^r but also to schedules or annexures thereto

containing particulars of any corrupt practice alleged therein.

In the light of the averments in the election petition, I hold

that the photographs and video cassettes adverted to in

paragraphs 7. 10 and 16 could be treated as integral part of

the election petition and. theiefore, failure to supply copy of

the photographs and video cassettes to the returned candidate

amounts to violation of the provisions of sub-section (3) of

Section 81 of the Act.

69. As far as defect in verification as pointed out by

the Supreme Court in AIR 1964 S.C. 1545, the defect can be

removed in accordance with the principles of the Code of

Civil Procedure. 1908.

70. In so far as the expression "copy" in Section 81 (3)

of the Act. means a copy which is substantially so and wluch

does not contain any material or substantial variation of a

\ ital nature as could possibly mislead a reasonable person to

understand and meet the chargcVallegations mad ? against h' m

in the election petition. A copy of which differs in material

particular¹; from the original cannot be treated as a true copy

*•; •-" » ViJi *.", x: cs / — <-/

216

THE GAZETTE OF INDIA : JULY 14, 2001/ASADHA 23, 1923

[PART II—SEC, 3(iii)l

of the original within the meaning of Section 81(3) of the Act

and the vital defect cannot be permitted to be cured after the

expiry of the period of limitation. I have already observed

that though learned counsel appearing for the returned

candidate has contended that he was served with only xerox

copy, the same has not been substantiated by placing the same

before this Court. On the other hand, verification from the

Registry shows that only true copy duly authenticated by the

election petitioner alone has been served on the returned

candidate and other respondents.

71. In Ihe light of the above discussion, 1 hold that

though there is defect in the "verification", the same can be

rectified in terms of the provisions of the Code of Civil

Procedure. The "copy" served on the returned candidate is a

true copy duly authenticated by the election petitioner.

However, the affidavit filed by the election petitioner does

not satisfy the requirement. I also hold that the election

petitioner though made an allegation against the returned

candidate by relying on photographs and video cassettes, the

same have not been enclosed along with the election petition

and served on the returned candidate.

72. Now I shall consider whether the election petition

satisfies Seclion 83 of the Act. Even at the outset, Mr. S.

Thanga Sivan, learned counsel appearing for the election

petitioner by drawing my attention to Section 86 of the Act,

would contend that it is open to this Court to dismiss an

election petition, which docs not satisfy the provisions of

Section 81 or Section 82 or Section 117 of the Act and for

non-compliance of Section 83, the election petition cannot

be dismissed. On the other hand, Mr. R. Thiagarajan, ledrned

senior counsel appearing for the returned candidate, would

contend that though Section 83 has not been included in

Section 86. the Supreme Court more than in one case has

held that compliance of Section 83 is a mandatory. As per

sub-section (1) of Section 83, concise statement of material

facts on which the petitioner relics on has to be mentioned in

the election petition. If the petitioner alleges corrupt practice,

it is for him to furnish full particulars of such corrupt practice

including full statement regarding names of the parties alleged

to have committed such corrupt practice, the date and place

of commission of each of such practice. Proviso to sub-clause

Ihe pctitition shall also be accompanied by an affidavit in

terms of Form 25 in support of the allegation regarding corrupt

practice. In this back-ground first I shall refer the decisions

to show that Section 83 is a mandatory one and the material

facts and particulars set out in the election petition.

73. I ha\c already extracted Section 83 of the Act.

Though the learned counsel appearing for the election

petitioner by referring Section 86 would state that Section 83

is not a mandatory provision, the judicial decisions are

otherwise. In the following decisions, the Supreme Court has

held that compliance of Section 83 is a mandatory :—

(1)

AIR 1969 S.C. 734 (para 5) (cited supra)

(2)

AIR 1%9 S.C. 1201 (para 29) (cited supra)

(3)

AIR 1972 S.C. 515 (para 19) (cited supra)

(4)

AIR 1986 S.C. 1253 (para 11) (cited supra)

(5)

AIR 1987 S.C. 1577 (para 14) (cited supra)

(6)

199I-2-S.C.C. 342(para9)(citedsupra)

(7)

AIR 1991 Kerala 20 (para 2) (cited supra)

(8)

AIR 1995 S.C. 2284 (para 17) (cited supra)

(9)

2000 (8) S.C.C. 191 (para 10 and 11) (cited supra)

it is clear that in the light of the above pronouncements, the

election petition must not only contain concise statement of

material facts, but also set-forth full particulars of corrupt

practice. If the election petitioner alleges corrupt practice, he

has to furnish full statement that is names of the parties alleged

to have committed corrupt practice, the date and place of

commission of each corrupt practice. I have already referred

to the decision of the Supreme Court in George Fernandez's

case (1969 SC 1201) wherein Their Lordships explained the

difference between material facts and particulars. It is clear

that the word 'material¹ 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 material facts

will mention that a statement of fact 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 tmc 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. It is also explained

in the said decision that if 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 ihe election petition regarding

'bribery¹, the election petitioner has generally stated that

returned candidate and his agents virtually pumped in several

crorcs of rupees and indulged in purchase of votes from

various villages by paying illegal gratification to the voters.

Likewise, it is alleged that the returned candidate and his

agents resorted to paying huge amounts of money and made

various gifts like bross vessels, sarccs, dholhies etc., to various

sections of .people in many villages as illegal gratification

and transported them to polling booths arid induced as well

as compelled them to cast their votes in his favour. By alleging

so, it is stated that the action of the returned candidate amounts

to corrupt practice as per Section 123 of the Representation

of the People Act. As stated by Their Lordships in George

Fernandez '.v case, nothing material has been stated in the

petition and in such a circumstance, he cannot be permitted

to amplify at a later date Ly giving particulars of acts on the

part of the elected candidate or his agents. In a large number

of cases it has been laid down that the material facts, must

make out a charge and it is only then that an amendment to

217

amplify the charge can be allowed or new instances of

commission of corrupt practice charged can be given. It is

settled law that if no charge is made out in the petition at all

the addition of particulars cannot be allowed to include

indirectly a new charge. Merely repeating the words of the

statute is not sufficient and the section requires that material

facts of corrupt practices must be stated. Likewise, though it

is generally stated that the returned candidate and his agents

used more than 100 vehicles every day for electioneering and

on the date of election on 11-9-99 more than 2000 vehicles,

hired by the returned candidate and his agents from various

parts of the State of Tamil Nadu as well as the adjoining State

of Andhra Pradesh were illegally used for transporting the

voters to the poll ing booths admittedly, the election petitioner

has not furnished the registration number of the vehicles and

the details regarding persons, places, polling booths etc. Under

Section 123 (5) of the Act, hiring or procuring, whether on

payment or otherwise, of any vehicle or vessel by a candidate

or his agent or by any other person with the consent of a

candidate or his election agent or the use of such vehicle or

vessel for the free conveyance of any elector to or from any

polling station is prohibited, A reading of the above section

makes it clear that use of vehicle for the "free conveyance"

of the elector alone would constitute corrupt practice. No

single specific instance has been quoted by the election

petitioner in para 7 of the election petition. As stated earlier,

first of all the registration number of the vehicles has not

been mentioned even in one case and also not specified as to

who were all the electors given" conveyance to or from any

polling station. In other words, the allegations referred to

therein arc too vague and general and with these insufficient

particulars the returned candidate may not be in a position to

defend the same effectively.

74. The perusal of the election petition also discloses

lhai no contemporaneous document relating to various acts

has neither been disclosed nor produced and in the absence

of am such document, as rightly contended, no notice of such

act can be tnken note of I have already referred to Rule 94-A

of the Conduct of Election Rules. 1961 which requires that

an affidavit must be in Form 25. Form 25 makes it clear that

ihc election petitioner must specify the nature of the corrupt

practice and the details of the corrupt practice as alleged. These

provisions have not been complied with by the election

petitioner. I have already referred to various decisions to show

that for want of necessary supporting affidavit filed by the

election petitioner, the allegations of corrupt practices arc

liable to be struck off. Though the election petitioner has filed

an affidavit, as stated earlier, it docs not contain the nature

and details of the corrupt practice.

75. With regard to the allegation, namely, widespread

rigging and bogus voting, admittedly, the election petitioner

has not filed am contemporaneous document such as making

complaint to election or police officers.

76 In para 'A the election petitioner has alleged that

the re turned candidate was supported by the ruling party in

the Centre as well as in the State and on that strength the

entire government machinery including Government cars and

other vehicles were used by the returned candidate for

electioneering. Here again, the election petitioner has not

mentioned the details regarding use of Government machinery

including Government cars and other vehicles, namely, the

registration numbers etc. Though it is alleged in the same

paragraph that the petitioner and his agents had complained

to the 8th respondent and to the police authorities, admittedly

the election petitioner has not enclosed copy of those petitions.

Thus, it is clear that the allegations arc general in nature and

they do not disclose any corrupt practice in terms of Section

83 of the Act.

77. In paragraph 10, the election petitioner has stated

that 8th and 9th respondents officials videographed the public

meeting arranged by the returned candidate and his agents

which was attended by Mr. M. Karunanidhi, Chief Minister

of Tamil Nadu in Vellore for canvassing votes for the returned

candidate. According to him, for the said programme alone

more than Rs. 20 lakhs was spent by the returned candidate

and the said incident alone would prove that he has spent

huge amounts of money and exceeded the expenditure limit

allowed by the Election Commission. Further, according to

him. Mayor of Chennai City Mr. M.K. Stalin was also brought

to the neighbouring areas by the returned candidate and for

arranging his public meetings several lakhs of rupees was

spent by him (the returned candidate). After making such

allegations, it is stated that the 8th respondent himself as well

as the observer of the Election Commission have issued a

memo to the returned candidate about the impropriety of the

accounts submitted by him, With reference to these averments,

the returned candidate in para 24 has stated that he has not

arranged the said meetings. Here again, the election petitioner

has not furnished the particulars, namely, the name of the

place, time and other material facts. The perusal of the said

paragraph would show that only general and sweeping

allegations have been made to make it appear that the returned

candidate has exceeded the expenditure limit alone. In this

regard, it is useful to mention what is referred to in Section

123 (6) of the Act for the words "corrupt practices" is the

incurring or authorizing of expenditure in contravention of

Section 77 that is incurring of expenditure by the candidate

himself and through somebody authorised by him for such

purposes exceeding the prescribed limit. It is clear that Section

123 (6) docs not take within its fold the failure to maintain

true and correct account. In other words, the corrupt practice

defined therein relates only to incurring or authorizing of

expenditure in excess of the amount prescribed; accordingly

failure on the part of the returned candidate to maintain

accounts as required under Section 77(1) and (2) will not

actually affect the result of the election. Section 77 of the Act

provides that every candidate at an election shall, either by

himself or by his election agent, keep a separate and correct

account of all expenditure in connection with the election

i ncurrcd or authorized by him or by his election agent between

the date on which he has been nominated and the date of

218

THE GAZETTE OF INDIA : JULY 14, 2001/ASADHA 23. 1923 .

|P\RI II—She. 3(iii)|

declaration of the result thereof, both dates inclusive.

Explanation 1 which vvas introduced by Amendment Act 58

of 1974. declares that any expenditure incurred or authorized

in connection with the election of a candidate by a political

party or by any other association or body of persons or by

any individual (other than the candidate or his election agent)

shall not be deemed to be, and shall not ever be deemed to

have been, expenditure in connection with the election

incurred or authorized by the candidate or by his election

agent for the purposes of Sub-section (1) of Section 77. Sub-

section (2) of Section 77 provides that the account of the

election expenses shall contain such particulars, as may be

prescribed. Sub-Section (3) provides that the total of the said

expenditure shall not exceed such amount as may be

prescribed As per Section 78 of the Act the account of election

expenses is required to be loged with District Election Officer

by every candidate at an election within 30 days from the

date of election of the returned candidate. The maximum

amount of election expenditure which may be incurred by

the candidates for the Parliamentary and Assembly

constituencies has been prescribed in Rule 90 of the conduct

of Election Rules, 1961, Under Section 123 (6) of the Act,

the incurring or authorising of expenditure in contravention

of Section 77 of the Act amounts to commission of a corrupt

practice. These provisions have been considered by the

Supreme Court in AIR 1995 S.C. 2284 (cited supra) and

the following conclusion of Their Lordships in para 21 is

rclevent:—

"21,.,

,.... However, every contravention of

Section 77 of the Act does not fall within the mischief

of Section 123(6) of the Act. Neither the violation of

Sub-section (1) of Section 77 nor the violation of

Sub-section (2) of Section 77 amounts to the

commission of the corrupt practice under Section 123

(6) of the Act. However, Section 77(3) mandates that

the total of the expenditure in connection with the

election shall not exceed the prescribed limit and

therefore the provisions of Section 123 (6) of the Act

are related only to Section 77(3) of the Act. If a

candidate incurs or authorises expenditure in excess of

the prescribed limits, he commits the corrupt practice

under Section 123 (6) of the Act and his election is

liable to be set aside and he also incurs the

disqualification of being debarred from contesting the

next election. From a plain reading of Sections 123 (6)

and 77 including Explanation 1 to Section 77 of the

Act. it is therefore clear that in order to be a corrupt

practice, the excessive expenditure must be incurred

or authorised by the candidate of his election agent An

expenditure incurred by a third person, which is not

authorised by the candidate or his election agent is not

a corrupt practice.,.,

In the light of the legal position and in the absence of any

details whether the said expenditure has been incurred by the

returned candidate or his agent or any other person, the

petitioner has not made out pnma facie case for corrupt

practice. Those allegations in para 10 suffers from for want

of material facts and particulars and. as rightly contended,

only general allegations have been made to make it appear ns

if the returned candidate had exceeded the expenditure limit

allowed. Further, though it is stated that the said meetings

were covered by video and audio, as held in AIR 1983 S.C.

558 (cited supra), in the absence of photograph or videograph,

the averment contained in paragraph 10 would be incomplete.

Inasmuch as the photograph or videograph referred to in that

paragraph was an integral part of an election petition, then

there was total non-compliance with the requirements of Sub-

section (3) of Section 81 of the Act by failure to serve the

elected candidate with a copy of the election petition. In AIR

1964 S.C. 1027 (cited supra), the Supreme Court has held

that if there is a total and complete non-compliance of Sub-

section (3) of Section 81, the election petition could not be

treated as an election petition presented in accordance with

the provisions of Part VI within the meaning of Section 80 of

the Act.

78. In para 11, it is stated that the returned candidate's

name does not find a place in the voters list of Vellore and he

has furnished an address in a remote village called

Melarasampatti to be his place of residence and those

particulars have been submitted by him with the 8th

respondent. He also exercised his franchise in Melarasampatti

village. This, according to the election petitioner, is in gross

violation of the rules and regulations and for the above act,

he is liable to be disqualified. With reference to this, the

returned candidate has offered his explanation in para 25 of

his affidavit. According7o him. he belongs to Vellore

Constituency and he was registered as a voter in

Melarasampatti village: hence his name was properly filed

and validly accepted. He has correctly exercised his franchise.

The explanation of the elected candidate is acceptable and it

does not show any violation of rules and regulations. At the

most, it is only a vague and sweeping averment without

material facts. Likewise, as rightly stated, the allegation as to

Mr. Ponnuswamy, who has contested from Chidambaram

reserved Constituency, has nothing to do with the case of the

present election petitioner, nor does it advance the case of

the present election petition.

79. The malpractice of tampering with ballot boxes

alleged in paragraph 12 are vague and without any material

facts and particulars as required in law.

80. In para 13, the election petitioner has stated that the

entire ballot boxes pertaining to Vellore Parliamentary

constituency were brought to the Thanthai Periyar Polytechnic

building in Vellore Town and while transporting the ballot

boxes from various places, the 8th respondent's officials did

not permit the election petitioner or his agents to accompany

the ballot boxes and hence the election petitioner was denied

of the opportunity to ensure that there is no malpractice en

route. It is also averred that while opening the safety rooms,

the 8th respondent did not permit the election petitioner's

agent to be present, In this paragraph, the election petitioner

219

lias made allegations only against Hiii respondent i e . the

Returning Ollio-.r and District Collector of Vcllorc L^;ven

othenvisc the election petitioner lias not furnished the

particulars such as. date, time and persons present.

81 In para 14, it is stated that the election petitioner

has appointed 3 persons, viz., Mr. G. Hussain of Variyur,

Vellore District, Mr. T N. Kuppan of Thoraipadi and

Mr, G. Sivaprakasnm, Knmaraj Nagar, Thoraipadi as lus

agents to stay in the Thanthai Periyar Polytechnic on shift

basis to keep a \v atch on the rooms. It is further stated that on

3rd October. 1 999 at about 6.30 P.M., one of his agents namely

Mr. G. Hussain after sensing some hasty movement of the

returned candidate and his men, inside the premises, he had

enquired with the security personnel and realised that the

, returned candidate and his men had indulged in a grave

malpractice of changing the ballot boxes by illegally opening

the locked door by unscrewing the screws available in the

padlock of the safety room with the help of the 8th

respondent's subordinates and the police personnel posted

there. This has been stoutly denied by the returned candidate

in para 28 of his affidavit. Here again, the election petitioner

has not furnished any material facts and particulars and how

the election petitioner and his agent had realised that and no

contemporaneous documents such as complaints to the

election and police officer made with regard to the said

incident h,ave been placed before this Court.

82. In para 15, it is stated that the election petitioner

• rushed to the premises where the ballot boxes were kept at

about 6.50 P.M with his chief agent Mr. Era. Sa. Maran and

one Gnanamani, a press photographer of Malai Murasu daily.

It is further stated that the padlock on the door of the safety

room in which the ballot boxes pcrtaini"" (."•• Anikut assembly

segment was kept has been removed and refixed. After

noticing the useless safety system, he realised that the 8th

respondent and his subordinates had acted under pressure from

the returned candidate. The said allegation has been denied

by the returned candidate stating that they are all nothing but

imagination of the election petitioner. The perusal of the said

paragraph shows that there is no allegation as to any actual

removal ol cither the screws or the padlock nor is there any

allegation as to whether anybody saw ihc same being removed

by anybody. Though sweeping allegations have been made

against the returned candidate, no contemporaneous act in

support of the above allegations have been disclosed in the

said paragraph. Further, the election petitioner has filed Malai

Murasu Newspaper (Evening edition) dated 4-10-99 as

document No. 8. the perusal of the same shows that it did not

contain any allegation against the returned candidate or the

8lh respondent. But it merely shows that election petitioner

visited Thanthai Periyar Government Polytechnic college

around 6.50 P.M. and verified wheth r there is a seal in the

lock and left the premises. There is no averment that after

seeing the "useless safety system", he had nude any complaint

to the concerned authority. In such a ouum&tancc, it is right

in contending that no contemporaneous, a.i in support of his

allegations have been disclosed in this paragraph. In para 16,

it is stated that election petitioner made the padlock

photographed by Mr. Gnanamani, the press photographer of

Mnlai Murasu, Vcllorc and further a complaint was also

iu.l»;d by him to the subordinates of the 8ih responded In

IIOF, paragraph also, there is no allegation against t he rcluj iicd

candidate or his men. Likewise, though it is suited that election

petitioner had made a complaint to the subordinates of the

8th respondent and the police personnel, admittedly, no

contemporaneous document substantiating such incident has

been filed along with the petition In paragraph 17, it is stated

that though the press photographer of Malai Murasu had taken

a photo showing the nature of the padlock, he refused to give

copies of the same under the influence of the 8th respondent

and the returned candidate. The said averment lias been denied

by the elected candidate. Even otherwise his grievance is only

against the press photographer of Malai Murasu for not giving

copies of the photographs said to have been taken by him

regarding the condition of the padlock. In Sub-paragraph(a)

of paragraph 17 it is staled by the election petitioner that the

total number of electors available in the Vellore constituency

is(ll, 52, 421, that the total number of votes polled on the

date of polling, viz., 11th September, 1999 is 7,00,114

according to the official statement issued by respondents 8 to

10 on the next day of the polling, and that the polled votes

works out to about 60.92 per cent votes in the Vellore

constituency. However,' it is stated that the total number of

votes found available after the counting is 7,02,63 9 and there

was a difference of 2,525 votes, which is only due to the

malpractice committed by the elected candidate and his

agents. This allegation has been specifically denied by the

returned candidate. Even though it is stated that the difference

of 2,525 votes is due to the malpractice committed by the

elected candidate and his agents, the election petitioner has

not furnished particulars. The details of votes polled and

counted as declared by respondents 8 to 10 as seen from their

communication dated 30-10-99 arc the total electors =

11,52,421; votes polled = 7,02,639; valid votes = 6,89,375;

invalid votes = 13,264; returned candidate (Mr, N.T

Shanmugam—P.M.K. Party) secured 3,24,547 voles (47.08

per cent) and the election petitioner (Mr. Mohammed Asif—

A. r. A.D.M.K. party) secured 2,98,862 votes (43.35 percent).

The said information further discloses that Mr. N.T.

Shanmugam of P.M.K. has been elected and Mr. Mohammed

Asif of A.D.M.K. has been defeated by a margin of 25,685

votes. In the light of the above particulars and in the light of

absence of details regarding malpractice said to have been

committed by the returned candidate and his agents, those

allegations arc liable to be rejected as devoid of merits. In

sub-paragraph (b) of paragraph 17, it is staled that due to

long gap of 25 days unnecessarily provided by respondents 9

and 10 for counting votes after the date of polling, there was

a widespread tampering of ballot boxes by the .returned

candidate and his agents. Here again, with regard to allegation

of tampering of ballot boxes, the election petitioner has not

furnished details such as place, date and names of persons

alleged to have involved The returned candidate cannot be

220

THE GAZETTE OF INDIA : JULY 14, 2001/ASADHA 23, 1923

PART II—SEC. 3(iii)]

faulted with for the time taken by respondents 9 and 10 for

counting votes after the date of polling. The allegation in sub-

paragraph (b) is vague and general, and the particulars and

the allegations made in sub-para (c) relate to 8th respondent.

The allegations made in para 18 relate to 8th and 9th

respondents and the first respondent—returned candidate has

nothing to do with the same.

83. In para 19, it is stated that a perusal of the photograph

which was specifically taken on 3-10-99 showed that there

was no safety central bolt and there were only outer screws

available in the padlock which have been easily removed by

the returned candidate and his agents. The said allegation has

been denied by the returned candidate and as discussed earlier,

the election petitioner has neither enclosed the

photograph said to have been taken on 3-10-99 nor furnished

copies of the same to the relumed candidate along with the

election petition.

84. In paragraph 20, the allegations have been made

against the 8th respondent. In para 21, though it is stated that

the elected candidate and his agents had involved in illegal

activities, except vague and general statement, the election

petitioner has not furnished the required material facts and

particulars.

85. The allegation in para 22 relates to 8th respondent.

Here again, the election petitioner has raised vague and

general averments

86. In para 23, the election petitioner himself has

admitted that he did not register any written complaint before

the 8th and 9th respondents, namely, the Returning Officer/

The District Collector of Vellorc and the Chief Electoral

Officer of Tamil Nadu. Chcnnai-9 for the reason that such

complaints would be misused by the returned candidate and

I he 8th respondent. When the election petitioner himself has

admitted that he did not register any written complaint before

the Appropriate Authorities at all stages, it is clear that except

the general and vague statements the election petitioner has

not substantiated by filing contemporaneous documents. The

averment made in para 24 relates to respondents 8 and 9. in

para 25. the petitioner has stated that the returned candidate

and his agents were indulged in large scale corrupt practice

b> changing the ballot boxes and bags by opening the room

in which the ballot boxes of Anicut constituency were kept

and replaced the genuine ballot bags and boxes with bogus

ones with the active help of the 8th respondent and his

subordinate officials. The said allegations have been stoutly

denied bv the returned candidate. In the light of his own

admission that he had not made any complaint to 8th and 9th

respondents, namely, the Competent Authorities and in the

absence of material facts and particulars, those averments

cannot be accepted.

87 In the last paragraph (para 26) it is stated that the

8th respondent and his officials rejected thousands of votes

both in fa\our of the election petitioner as invalid and

reckoned thousands of actual invalid votes in favour of the

relumed candidate. The said allegations have been denied by

the returned candidate. I have already referred to the details

of votes polled and counted as declared by respondents 8 and

10. Further, in the latter part of paragraph 26 the election

petitioner has made allegations against third respondent who

has nothing to do with the present controversy. The elected

candidate has slated that the election petitioner has not

furnished any details, material facts or particulars and further,

before declaring results, the procedure has been clearly

followed and observed.

88. To sum up in order to declare the election of the

returned candidate as null and void under Section 100 of the

Act, it is absolutely necessary for the election petitioner to

plead that the result of the election has been materially affected

by non-compliance with the provisions of the Acts and Rules.

I have already referred to the relevant provisions of the Act,

various averments raised by the election petitioner and the

affidavit of the returned candidate as well as judicial decisions

dealing with the mandatory requirements. The election

petition lacks necessary material facts and particulars in all

aspects. In the absence of concise statement of material facts

and particulars and full particulars regarding corrupt practices,

it is not open to the election petitioner to adduce any evidence

to that effect. I have already demonstrated Section 83 of the

Act is a mandatory provision and all material facts and

particulars should find place in the election petition by way

of pleadings. If the required facts are not pleaded with

necessary material facts and particulars, the election petition

is liable to be dismissed. If the pleadings are insufficient and

no triable issues existed this court has power to reject the

election petition under Order VII. Rule 11 of the Code of

Civil Procedure. It was held in catena of decisions that if the

Court is satisfied that the election petition does not make any

cause of action which may tend to prejudice, embarrass or

delay the proceedings, the Court can strike out the pleadings.

I have already referred to that Section 83 of the Act is

mandatory in character and requires not only a concise

statement of material facts and full particulars of the alleged

corrupt practice, so as to present a full and complete picture

of the action to be detailed in the election petition but under

the proviso to Section 83 (1) of the Act. the election petition

levelling a charge of corrupt practice is required, by law. to

be supported by an affidavit in which the election petitioner

is obliged to disclose his source of information in respect of

the commission of that corrupt practice. It is necessary for an

election petitioner to make such a charge with full

responsibility and to prevent any fishing and roving enquiry

and save the returned candidate from being taken by surprise.

In the absence of proper affidavit, in the prescribed form,

filed in support of the corrupt practice of bribery, the allegation

pertaining thereto, could not be put to trial since the defect

being of a fatal nature. Regarding corrupt practice, no name

of any informant has been mentioned under Section 123 (1)

of the Act in the affidavit. In such a circumstance, no issue

could be framed for trial. Section 83 of the Act requires not

only a concise statement of material facts and full particulars

of the alleged corrupt practice, so as to present a full and

221

complete picture of the action to be detailed in the election

petition but under the proviso to Section 83 (1) of the Act,

the election petition levelling a charge of corrupt practice is

required, by law, to be supported by an affidavit in which the

election petitioner is obliged to disclose his source of

information in respect of the commission of that corrupt

practice. I am satisfied that the mandatory requirements are

lacking in our case. There is no dispute that by virtue of

Section 87 of the Act, the provisions of the Civil Procedure

Code are made applicable for the trial of an election petition.

Under Order VI Rule 16 of the Code of Civil Procedure the

Court is empowered at any stage of the proceedings to strike

out any pleading which may be unnecessary, scandalous,

frivolous or vexatious or which may tend to prejudice,

embarrass or delay the fair trial of the petition or suit or which

otherwise an abuse of the process of the Court. Order VII,

• Rule 11 (a) mandates that a plaint shall be rejected where it

does not disclose a cause of action. Therefore, it is clear that

an election petition is to be summarily rejected where it fails

to furnish a cause of action. The allegations regarding bribery,

undue influence, excess expenditure, malpractices,

irregularities in certain booths, use of Government

machineries, tampering of ballot boxes etc, the election

:^{petitioner has not furnished material facts, particulars and the}

general allegations do not disclose all material facts. The

election petitioner has not filed contemporaneous complaint

or petition against his alleged malpractice, tampering of ballot

boxes etc. The allegation contained in the election petition

lacks material particulars. Even for the use of Government

.machineries, the election petition docs not specifically say

the details regarding motor vehicles which were procured and

used for the free conveyance of electors. The election

'petitioner has not furnished the registration number of motor

vehicles and not specified as to who were all the electors

given conveyance to or from polling station. The allegations

nrc loo vague and general and are not capable of raising a

cause of action. It is obligatory on the part of the election

petitioner to give requisite facts and details of each corrupt

practice with clear exactitude. If the election petitioner fails

lo give such details and the allegations are vague and general.

there may not arise a cause of action and the trial of such

election petition is unnecessary. The Supreme Court in various

above referred decisions emphasised that if the allegations

arc vague and general and the particulars of corrupt practices

are not stated in the pleading, the trial of the election petition

cannot be proceeded with and the election petitioner should

not be allowed to have a "fishing expedition" to have a "roving

enquiry". 1 am satisfied that the allegations in the election

petition do not give the details, and that they are of vague and

general character, As all the grounds urged by the election

petitioner are bereft of material particulars, the petition is only

to be rejected.

89. In the circumstances, on a due consideration of all

the contentions raised by the learned counsel for the election

petitioner and the returned candidate, the Original Application

No. 1190 to 2000 has to be allowed on the preliminary

objection raised, In view of the order allowing the Original

Application filed by the returned candidate, as a further

consequence, this Court holds that the Election Petition No.

4 of 2000 deserves to be dismissed. Consequently, the entire

Election Petition is rejected under Order VII. Rule 11 of the

Code of Civil Procedure.

90. In the result, Original Application No. 1190 of 2000

is allowed and the Election Petition No. 4 of 2000 stands

dismissed under Section 86 and 83 (1) of the Representation

of the People Act, 1951 read with Order VII, Rule 11 of the

Code of Civil Procedure, 1908. The parties to bear their

respective costs in the original application as well as in the

Election Petition.

Witness the Hob'blc Thim NAGENDRA KUMAR

JAIN, Chief Justice, High Court at Madras aforesaid, this the

SIXTH day of FEBRUARY TWO THOUSAND AND ONE.

SdA

Assistant Registrar,

Original Side-II

|No. 82/TN-HP/4/2000]

By Order,

K.R. PRASAD, Secy.

Printed by Ilia Manager, Govl. of India Press, Ring Road, Maya Puri, New Dellii-110064,

and Published by the Controller of Publication, Delhi-110054— 2001.