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REGD. NO. D. L. (N) 04/0007/2003—05

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ELECTION COMMISSION OF INDIA

New Delhi, the 11th January, 2011

O. N. 10.—In pursuance of Section 106(a) of the

Representation of the People Act, 1951 (43 of 1951), the

Election Commission hereby publishes the order of the

High Court of Madras dated 13-8-2010 in Election Petition

No. 8 of 2009.

63 GI/2011

(7)

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PUBLISHED BY AUTHORITY

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WEEKLY

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No. 2]

NEW DELHI, JANUARY 16—JANUARY 22, 2011, SATURDAY/PAUSA 26—MAGHA 2, 1932

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Separate Paging is given to this Part in order that it may be filed as a separate compilation

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PART II—Section 3—Sub-section (iii)

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

(HERE PRINT THE JUDGEMENT ATTACHED)

In the High Court of Judicature at Madras

(Ordinary Original Civil Jurisdiction)

Friday, the 13th day of August, 2010

The Hon’ble Mr. Justice M. Jaichandran

Election Petition No. 8 of 2009

and

A. No. 1049, 1050 and 1051 of 2010

ELP. No. 8 of 2009

S. P. K. Dhamodhar

S/o Sundaram,

No. 13, Sathya Sastha Apartments,

1st Cross, Jhansi Nagar,

Mudaliarpet Post, Pudhucherry 605, 004.

. . .Petitioner

1. Narayanasamy

S/o. Velu,

No. 5, Ellaiamman Koil Street,

Puducherry-605 001

2. The Returning Officer-cum-District Collector-

Puducherry Parliamentary Constituency.

Collector’s Office, Puducherry.

. . .Respondents

THE GAZETTE OF INDIA : JANUARY 22, 2011/MAGHA 2, 1932

[PART II—SEC. 3(iii)]

This Election Petition praying that this Hon’ble Court

be pleased (a) to declare that the election of the 1st

respondent Mr. Narayanasami to the 13th Lok Sabha from

Puducherry Parliamentary Constituency in which the result

was declared on 16-5-2009 as null and void, (b) to direct

the 1st respondent to pay the cost of the petition to the

petitioner.

A. Nos. 1049 of 2010, 1050 of 2010 and 1051 of 2010

Narayanasamy

S/o. Velu,

No. 5, Ellaiamman Koil Street,

Puducherry-605 001

...... 1st Respondent/Applicant

1. S. P. K. Dhamodhar

S/o. Sundram,

No. 13, Sathya Sastha Apartments,

1st Cross, Jhansi Nagar,

Mudaliarpet Post, Pudhucherry-605 004

Petitioner/1st Respondent in OA

2. The Returning Officer-cum-District Collector

Puducherry Parliamentary Constituency,

Collector’s Office, Puducherry.

Respondents/

2nd Respondent in OA

This Application praying that this Hon’ble Court be

pleased to take up the following issue as preliminary issue

viz. (a) whether in the absence of clear pleading in the

Election Petition of material facts and supported by material

particulars that cognisance has been taken/charge had

been framed against the applicant/respondent-1, in the

criminal complaint on the file of the Judicial Magistrate,

First Class, Raipur, and the same had been made known to

the applicant/respondent-1 through service of Court

summons on or before 20-4-2009 namely the date on which

the applicant/respondent-1 filed the affidavit date

20-4-2009 along with his nomination, the Election petition

is maintainable on the ground that the applicant/

respondent-1 has suppressed the material information

relating to complaint pending on the file of the Judicial

Magistrate, First Class, Raipur, for want of triable issue

and cause of action, (b) whether the Election Petition is

maintainable when the Election Petitioner had not objected

to acceptance of the nomination of this applicant at the

time of scrutiny of nomination papers, after the nomination

paper of the applicant had been properly accepted and

the applicant has been duly declared elected.

A. No. 1050 of 2010

This Application praying that this Hon’ble Court be

pleased to dismiss the Election Petition for non complaince

of Section 81 (3) of the Representation of People Act

namely. (1) The copy of the Election Petition served on

the applicant does not have the signature of the Election

Petitioner by way of True Copy attestation by the Election

Petitioner with his same signature as found is the

verification of the Election Petition and the documents.

(2) The corrections incorporated in the first and the fifth

pages of the Election Petition have not been duly signed

by the Election Petitioner attesting the corrections. (3)

The Election Petitioner has not filed the requisite number

of copies of Election Petition and documents as required

under Section 81 (3) at the time of filing Election Petition.

(4) All copies of documents served on the applicant contain

attestation as ture copy with veritication dated 20-10-2009,

even though Election Petition was filed on 30-6-2009.

Obviously the documents are either not filed of not

attested on 30-6-2009 and hence not to be treated as

documents filed along with the Election Petition.

Consequently Election Petition was not supported by any

documents.

A. No. 1051 of 2010

This Application praying that this Hon’ble Court be

pleased to strike out the following pleadings in the Election

Petition No. 8/2009 as being vague, vexatious, without

material facts and material particulars (1) The averment is

Para-4 that “the 1st respondent has sworn to the above

affidavit falsely stating that no criminal case is pending

against him.” (2) The averment in Para-5 that “The returned

candidate 1st respondent has suppressed material as well

as substantial fact before the Returning Officer, Puducherry

at the time of filling of nominatioon papers.” (3) The

averment in Para-7 that “was fully aware of the criminal

case registered against him at Raipur. However, willingly

and dishonestly to the first respondent has suppressed

the same in his affidavit filed before the second

respondent.” (4) The averments in Para-7 that “the election

to the Puducherry Parliamentary Constituency has been

substantially affected the election and the election of the

1st respondent is void since 1st respondent had violated

the mandatory provision of Section of 33A of the R. P.

Act.” (5) Consequently reject the Election Petition,

No. 8/2009 as being bereft of necessary pleadings for Trial

to support the prayer sought for due to want of cause of

action and triable issues.

This Election Petition along with these Applications

coming on this day before this Honourable Court for

hearing in the presence of Mr. S. Subramaniam Balaji,

Advocate for the Petitioner in Election Petition No. 8 of

2009 and for the Applicant in Application No. 1049, 1050

and 1051 of 2010, and Mr. S. Subramaniam Balaji, Advocate

for the petitioner is Election Petition No. 8 of 2009 and for

the 1st respondent in Applicant in A. No. 1049 to 1051 of

2010 and G. Masilamani,, Senior Counsel for Mr. Mani

Sundargopal, Advocate for the 1st respondent in Election

Petition No. 8 of 2009 and for theApplicant in A. No. 1049

¹Hkkx IIó[k.M 3(iii)º

Hkkjr dk jkti=k % tuojh 22] 2011@ek?k 2] 1932

to 1051 of 2010 and G. Rajagopalan, Senior Counsel for

M/s. G. R. Associates, Advocate for the 2nd Respondent

in Election Petition 8 of 2009 and for the 2nd Respondent

in A. No. 1049 to 1051 of 2010 and upon reading the petition

filed is Election Petition No. 8 of 2009 and the Judges

Summon and Affidavit V. Narayanasamy filed in A. No.

1049 of 2010, Judges Summon and Affidavit of V.

Narayanasamy filed in A. No. 1050 of 2010 and the Judges

Summon and Affidavit of V. Narayanasamy filed in A. No.

1051 of 2010, and this Court is conscious of the fact that in

a true democracy, the free will of the people would have to

prevail, unless it is perceivably irregular or palpably illegal.

The democratic process of elections cannot be permitted

to be curbed or scuttled, except in accordance with the

procedure eatablished by law. While construing the laws

relating to the elections. In their strict sence, as intended

by the legislature, it is to be kept in mind that the rule is

participation in the democratic process and exclusion

should only be an exception. In such circumstances and

this Court is of the considered view that sufficient cause

and acceptable reasons have been shown by the first

respondent for the rejection of the present election petition.

As such, the election petition is liable to be diamissed, in

limine, for want of proper pleadings and for lack of cause

of action and triable issue.

It is ordered as follows :

1. That the Election Petition No. 8 of 2009 do stand

dismissed.

2. That the connected Application Nos. 1049 of

2010, 1050 of 2010 and 1051 of 2010 do stand closed.

3. That there shall be no order as to costs in this

Election Petition.

Witness the Hon’ble Thiru M. Yusuf Eqbal, the Chief

Justice, High Court at Madras aforesaid, this the 13th day

of August, 2010.

Sd/-

Assistant Registrar Original Side II

Certified to be True Copy

Dated this the 8th day of September, 2010

From 25th day of September, 2008 the Registry is

issuing certified copies of the Orders/Judgments/

Decrees in this format.

MK-24-8-2010

ELP., No. 8 of 2009

A. Nos. 1049, 1050 and 1051 of 2010

Order

Dated 13-8-2010

The Hon’ble Mr. Justice

M. Jaichandran

for Approval 26-8-2010

Approved on 30-8-2010

Copy to :

The Returning Officer cum District Collector

Puducherry Parliamentary

Constituency,

Collector’s Office,

Puducherry.

In the High Court of Judicature at Madras

Dated : 13-8-2010

Coram :

The Honourable Mr. Justice M. Jaichandran

Election Petition No. 8 of 2009

S.P.K. Dhamodhar

. . .Petitioner

1. Narayanasamy

The Returning Officer-cum-District Collector

Puducherry Parliamentary Constituency

Collector’s Office

Puducherry

. . .Respondents

Prayer : The election petition has been filed under

Section 80-A and 81, read with Section 33-A of the

Representation of the People Act, 1951, to declare that the

election of the first respondent Mr. Narayanasamy, to the

13th Lok Sabha from Puducherry Parliamentary

constituency, in which the result was declared, on 16-5-

2009, as null and void, and to direct the first respondent to

pay the costs of the petition to the petitioner.

For Petitioner

: Mr. S. Subramaniam Balaji

For Respondents

: Mr. G. Masilamani,

Senior Counsel for

Mr. Mani Sundragopal for R 1

Mr. G. Rajagopalan

senior counsel for

M/s. G. R. Associates for R 2

ORDER

Heard Mr. S. Subramaniam Balaji, the learned counsel

appearing for the petitioner and Mr. G. Masilamani, the

Senior Counsel for Mr. Mani Sundargopal, the learned

counsel appearing for the first respondent, as well as

Mr. G. Rajagopalan, the learned Senior Counsel for

M/s. G.R. Associates appearing for the second respondent.

THE GAZETTE OF INDIA : JANUARY 22, 2011/MAGHA 2, 1932

[PART II—SEC. 3(iii)]

2. This election petition had been filed by the

petitioner, who is said to be a registered voter at the

Puducherry Parliamentary Constituency.

3. The petitioner had stated that he had functioned

as the Chief Election Agent for Mr. Vishweswaran, a

candidate nominated by the Bharatiya Janata Party, to

contest as a candidate in the Parliamentary Elections,

concluded in the year, 2009. The first respondent was the

candidate nominated by the Indian National Congress

party, to contest the said elections. At the said elections,

the first respondent had been declared as the winning

candidate, by the second respondent/Returning Officer,

on 16-5-2009.

4. The petitioner had further stated that the first

respondent, who is the returned candidate, had furnished

an affidavit, along with his nomination form, as mandated

under Section 33-A of the Representation of the People

Act, 1951. From the information available about the

candidates from the relevant website of the Election

Commission of India, through the internet, it had been

found that the first respondent had sworn to an affidavit,

dated 20-4-2009, declaring that he was not accused of any

offence, punishable with imprisonment for two years or

more, in a pending case, in which a charge had been framed

by the Court of competent jurisdiction.

5. It had also been stated that the first respondent

had sworn to the affidavit, falsely, stating that no criminal

case was pending against him. However, the petitioner

had come to learn that a criminal case, vide criminal case

No. 358 of 2009, had been registered in the Court of the

Judicial Magistrate, First Class, Raipur, Chhattisgarh

State, under Sections 499 and 500 of the Indian Penal

Code, 1860. Thereafter, the petitioner had, immediately,

informed the same to the second respondent/Returning

Officer, even before the scrutiny of the nomination paper

of the first respondent. However, the second respondent

had accepted the nomination of the first respondent,

without considering the objection raised by the

petitioner.

6. The petitioner had also stated that the first

respondent ought to have furnished the correct information

before the second respondent/Returning Officer, as per

the requirements of Section 33-A of the Representation of

the People Act, 1951. By the said legislation, it is clear that

the candidates should furnish true and real information,

without suppressing the material and substantial facts

before the Returning Officers concerned, at the time of

the filing of the nomination paper.

7. The petitioner had further submitted that the first

respondent was holding the position as the observer for

Chhatisgarh State unit of the Indian National Congress

party, during the run up to the parliamentary elections,

held in the year, 2009. One Ajay Chandrakar, Former

Minister, Panchayat and Rural Development, State of

Chhatisgarh, had instituted a complaint against the first

respondent, under Sections 499 and 500 of the Indian Penal

Code, 1860, before the Court of the Judicial Magistrate,

First Class, Raipur, Chhatisgarh. On 6-4-2009, the Judicial

Magistrate, First Class, Raipur, Chhattisgarh, had registered

the complaint and had taken the same on file bearing

criminal case No. 358 of 2009, and had ordered summons

to the first respondent.

8. The petitioner had further stated that, on 6-4-

2009, the said complainant had given a press conference,

at Raipur, informing about the criminal case registered

against the first respondent. A daily newspaper published

from Raipur, Nagpur and Jabalpur, by the name “The

Hitavada” had published the said news item and had also

published the version of the first respondent, who had

refused to give any comment, saying that he would submit

his reply to the Court, whenever the need arose.

9. It had also been stated that, from the newspaper

report, it could be seen that the first respondent had been

at Raipur, on 6-4-2009, and that he was fully aware of the

criminal case registered against him, at Raipur. However,

the first respondent had suppressed the said fact, in his

affidavit filed before the second respondent.

10. The petitioner had also submitted that the

election to the Puducherry Parliamentary Constituency

had been, substantially, affected by the fraudulent

suppression of material facts, by the first respondent.

11. It had also been stated that the cause of action

for the present election petition had arisen within the

jurisdiction of this Court, on 17-4-2009, when the Election

Commission of India had issued the notification for the

Parliamentary Elections, on 27-4-2009, when the second

respondent had published the list of contesting candidates,

on 13-5-2009, when the election was held, and on

16-5-2009, when the result of the Puducherry Parliamentary

Constituency was declared. The petitioner had also

declared that the election petition had been filed within

the period of 45 days. prescribed, under Section 81(1) of

the Representation of the People Act, 1951. Therefore,

the petitioner had filed the election petition praying that

this Court may be pleased to declare the election of the

first respondent, to the 13th Lok Sabha, from Puducherry

Parliamentary Constituency, for which the result was

declared, on 16-5-2009, as null and void and to direct the

first respondent to pay the costs of the petition to the

petitioner.

12. The first respondent in the election petition, who

is the returned candidate, in Puducherry Parliamentary

Election, held on 12-5-2009, had filed an application, in

Application No. 1049 of 2010, raising certain preliminary

objections, an application in Application No. 1051 of 2010,

to dismiss the election petition for non-compliance of

¹Hkkx IIó[k.M 3(iii)º

Hkkjr dk jkti=k % tuojh 22] 2011@ek?k 2] 1932

Section 81 (3) of the Representation of the People Act,

1951 and an application in Application No. 1051 of 2010 to

strike out the pleadings in the election petition, as being

vague, vexatious, without material facts and material

particulars.

13. The first respondent had submitted that, for the

reasons stated in the affidavits filed in support of the

applications, the election petition is not maintainable,

especially, when the petitioner in the election petition had

not objected to the acceptance of the nomination of the

first respondent, at the time of the scrutiny of the

nomination paper and after the nomination paper of the

first respondent had been properly accepted and after he

had been duly declared as elected in the election.

14. The first respondent in the election petition,

who is the applicant in Application No. 1049 of 2010, had

stated that the election petition filed by the petitioner to

declare the election of the first respondent, held on 12-5-

2009, as null and void, on the alleged ground that he had

not disclosed the pendency of a complaint, made under

Sections 499 and 500 of the Indian Penal Code, 1860, on

the file of the Judicial Magistrate, First Class, Raipur, State

of Chhattisgarh, is devoid of merits. The election petition

had been filed under Sections 80-A and 81, read with

Section 33-A of the Representation of the People

Act, 1951.

15. It had been stated that the election petitioner

had not stated, anywhere in the election petition, as to

when and how he had informed the Returning Officer, the

second respondent herein, about the non-disclosure of

the relevant information by the first respondent. Further,

the election petitioner had not shown any documentary

proof before the second respondent-Returning Officer to

impute knowledge of the alleged incident, said to have

taken place before the date of the filing of the affidavit,

dated 20-4-2009. Further, there is nothing to show that the

first respondent had wilfully suppressed such information.

16. It had been further stated that no evidence is

placed before this Court, along with the election petition,

to prove the allegations of the petitioner, except a copy of

the newspaper, which is said to have carried the news of

the registering of the criminal case against the first

respondent.

17. It had also been stated that the petitioner had

only made vague and vexatious allegations in the election

petition stating that he had informed the Returning Officer

about the serious default, said to have been committed by

the first respondent, even before the acceptance of the

nomination paper. There is no proof shown to sustain

such a claim. As such, the election petitioner had failed to

furnish material facts and material particulars to support

and sustain his allegations. There is nothing on record to

show that the first respondent had suppressed the material

information known to him, authentically, which he was

lawfully required to disclose in the affidavit filed along

with the nomination paper. The vague allegations made

by the election petitioner against the first respondent is

an abuse of process of Court and therefore, the election

petition is liable to be dismissed in limine, for want of

proper pleadings and due to the lack of cause of action

and triable issues.

18. It had also been stated that the alleged non-

disclosure of relevant information by the first respondent

is not a ground to challenge the election of the first

respondent and for declaring the same as void, under

Section 100 of the Representation of the People Act, 1951.

In fact, the election petition is not filed under Section 100

of the Representation of the People Act, 1951. As such,

the election petition is liable to be rejected, summarily.

19. It had also been stated that the election, and the

rights and duties arising from such election, are created

by the relevant statutes and such rights and duties are of

paramount importance and therefore, the protection of such

rights and the enforcement of the duties arising out of the

statutory obligations cannot be tampered with or abridged

in a flimasy manner. It is obvious on the face of the records

available before this Court that the election petitioner had

not shown sufficient proof to sustantiate his claims

against the first respondent to declare his election, as null

and void. There is nothing on recond to show that a

criminal case has been registered against the first

respondent and that the concerned Court, having

jurisdiction to try the same, had taken cognisance of the

matter and that a charge had been framed and the necessary

summons had been served on the first respondent, before

the date of the filing of the affidavit before the second

respondent/Returning Officer.

20. It had also been stated that the election petition

is liable to be dismissed due to the various incurable

procedural defects, which are as follows :

(a) The non-disclosure, is clear terms, the date on

which the Court had taken cognisance of the complaint

said to have been made against the first respondent, and

that certain charges had been framed, based on the said

complaint, and that the necessary summons had been

served on the first respondent, through Court, before he

had filed the affidavit before the second respondent along

with the nomination paper.

(b) The non-disclosure of certain particulars,

including the date, time, place, the manner and the method

by which the election petitioner had informed the

Returning Officer about the alleged criminal complaint and

as to whether the election petitioner had, in fact, objected

to the acceptance of the nomination paper of the first

respondent, at the time of its scrutiny.

THE GAZETTE OF INDIA : JANUARY 22, 2011/MAGHA 2, 1932

[PART II—SEC. 3(iii)]

material particulars and the non-production of a copy of

the acknowledgement of the information furnished by the

election petitioner to the second respondent/Returning

Officer.

(d) The non-disclosure and the non-production of

material facts and particulars to prove that the election

petitioner, had, in fact objected to the acceptance of the

nomination paper, by the second respondent.

(e) The non-disclosure and the non-production of

material facts and the necessary documentary proof

required for imputing knowledge, regarding the pendency

of the criminal case, on the first respondent, would render

the election petition void, for lack of cause of action and

triable issues.

21. It had also been stated that the election petitioner

cannot be permitted to raise the issue regarding the

pendency of the criminal complaint, merely based on a

certain newspaper report. It cannot be said that the first

respondent had knowledge, regarding the pendency of

the alleged criminal case, before the date of the filing of

the affidavit before the second respondent. Based only

on a statement, said to have been made in the “The

Nitavada” newspaper published at Raipur, stating that the

first respondent would submit his reply to the Court,

whenever, the need arose, it cannot be held that the first

respondent had knowledge of the criminal case, said to be

pending on the file of the Judicial Magistrate, First Class,

Raipur, State of Chhattisgarh.

22. It had been further stated that, even essuming,

without admitting, that the newspaper report is true and

correct, the election petitioner ought to have shown, by

sufficient proof, that summons had been served on the

first respondent, regarding the criminal case said to be

pending on the file of the Judicial Magistrate, First Class,

Raipur, State of Chhattisgarh, obviously, it would be

improper on the part of the first respondent to file his

sworn affidavit, merely based on a certain newspaper

report, unless such information is communicated to him,

officially, in the manner known to law. Even otherwise, the

requirement of furnishing of information by the candidate,

under Section 33-A of the Representation of the People

Act, 1951, would arise only if the candidate is accused of

an offence punishable with imprisonment for two years or

more in a pending case in which a charge has been framed

by the Court of competent jurisdiction. The offence

contemplated, under Sections 499 and 500 of the Indian

Penal Code, 1860, does not fall under the category of an

offence regarding which the information had to be

furnished by the candidate to the Returning Officer. The

punishment prescribed for the offence of defamation is

simple imprisonment for a term which may extend to two

years or with fine or both. Only in cases, where the offence

is punishable with imprisonment for two years or more,

the candidate would be required to furnish the information

regarding the pendency of the criminal case. Therefore,

there was no obligation on the part of the first respondent

to disclose the information relating to the alleged

pendency of a criminal case before the Judicial Magistrate,

First Class, Raipur, State of Chhattisgarh. Further, the

object of the election petition, filed by the election

petitioner, is mala fide in nature, as it has been done only

with the intention of maligning the fair name of the first

respondent in the eyes of the public and to gain cheap

media publicity and undue mileage.

23. It had also been stated that, under Section 81 (3)

of the Representation of the People Act, 1951, every

election petition should be accompanied by as many true

copies thereof, as there are respondents. Further, every

copy should have been attested by the petitioner, under

his own signature, to be a true copy of the petition. In fact,

a copy of the election petition served on the first

respondent does not have the signature of the election

petitioner, attesting the petition to be a true copy. The

corrections incorporated in the petition have not been

attested by affixing his signature.

24. It had also been stated that the election petitioner

had not filed the requisite number of copies of the election

petition and the relevant documents, as required under

Section 81(3) of the Representation of the People Act,

1951, at the time of the filing of the election petition. All

copies of the documents served on the first respondent

contain the attestation that they are true copies with the

verification date mentioned as 20-10-2009, even though

the election petition had been filed, on 30-6-2009. The said

discrepancy is a serious flaw in the filing procedure.

Section 86 of the Representation of the People Act, 1951,

stipulates that an election petition, which does not comply

with the provisions of Section 81 of the Act, is liable to be

dismissed. As such, the election petition is liable to be

dismissed, due to the incurable defects found to have

been committed during the process of the filing of the said

petition. Further, the Returning Officer, impleading as the

second respondent, is neither a necessary, nor a proper

party to the election petition and therefore, the election

petition is bad for misjoinder of the second respondent in

the election petition.

25. Further, the first respondent had prayed

for striking out the following pleadings in the election

petition :—

“1. The averment in para-4 that “the first respondent

has sworn to the above affidavit falsely stating

that no criminal case is pending against him.

2. The averment in para-5 that “The returned

candidate/1st respondent has suppressed

material as well as substantial fact before the

returning officer, Puducherry at the time of filing

of nomination papers.

¹Hkkx IIó[k.M 3(iii)º

Hkkjr dk jkti=k % tuojh 22] 2011@ek?k 2] 1932

3. The averment in para-7 that “was fully aware of

the criminal case registered against him at Raipur.

However willingly and dishonestly to the first

respondent has suppressed the same in his

affidavit filed before the second respondent.”

4. The averments in para-7 that “the election to the

Puducherry Parliamentary Constituency has been

substantially affected the election and the

election of the first respondent is void since the

first respondent had violated the mandatory

provision of Section of 33-A of the

Representation of the People Act, 1951.”

26. It had also been prayed that, after the striking

out of certain portions of the pleadings, the election

petition may be dismissed, as being vague, vexatious and

without the necessary cause of action and trible issues.

27. Further, by an affidavit, dated 10-7-2010, filed by

the first respondent, it has been stated that the petitioner

has filed a criminal complaint, dated 15-4-2010, on the file

of the Chief Judicial Magistrate, Puducherry, under Section

200 of the Criminal Procedure Code, 1973, read with Section

125-A of the Representation of the People Act, 1951, and

under Section 177 of the Indian Penal Code, 1860, on the

alleged ground that the first respondent had failed to

disclose the pendency of the criminal complaint against

him, in the affidavit filed along with his nomination paper,

on 20-4-2009, as required under Section 33-A of the

Representation of the People Act, 1951. The criminal

complaint had been filed, on 15-4-2010, after more than

360 days after the filing of the affidavit, by the first

respondent, before the second respondent/Returning

Officer, on 26-6-2009. The complaint filed by the election

petitioner had been dismissed by the Chief Judicial

Magistrate, Puducherry, as not maintainable, after a detailed

hearing and by a well reasoned order. However, the election

petitioner had not brought to the notice of this Court the

complaint, made by him, in 15-4-2010, and the order of the

Chief Judicial Magistrate, Puducherry, dated 5-5-2010, at

the time of the hearing of the election petition by this

Court, either on 21-6-2010, or on 29-6-2010.

28. It had also been stated that a certified copy of

the order passed by the Chief Judicial Magistrate,

Puducherry, on 5-5-2010, had been filed before this Court

by way of a memo.

29. In the common counter affidavit filed by the

election petitioner, in the applications filed by the first

respondent, in Application Nos. 1049, 1050 and 1051 of

2010, the averments and allegations made by the first

respondent had been denied.

30. It has been stated that the first respondent had

knowledge of the criminal complaint that was pending

against him on the file of the Judicial Magistrate, First

Class, Raipur, State of Chhattisgarh, under Sections 499

and 500 of the Indian Penal Code, 1860. It is clearly seen

from the news item, reported in “The Hitavada” newspaper,

dated 7-4-2009, that the first respondent had clear

knowledge about the criminal comlaint pending against

him. The election petitioner had objected to the filing of

the nomination paper by the first respondent, by

suppressing the material fact regarding the pendency of

the criminal complaint against him. The very fact that the

first respondent had filed a false affidavit before the second

respondent, which has been filed as a document, along

with the election petition, would prove that the first

respondent had, wantt only suppressed the material fact

regarding the pendency of the criminal complaint against

him. A copy of the English newspaper. “The Hitavada”,

which is leading newspaper in the State of Chhattisgarh,

had been filed as a document, along with the election

petition. The Election Commission of India, had made it

mandatory for the contesting candidates, to submit the

relevant information about the criminal cases pending

against them. Even though the first respondent had

knowledge of the criminal complaint registered against

him, and after he had been questioned about the same by

the reporters, and after it had been reported in “The

Hitavada” newspaper, it would not be open to the first

respondent to plead lack of knowledge regarding the

pendency of the criminal complaint.

31. It had also been stated that the first respondent

had not denied the newspaper report, nor had he issued a

notice against the same. It is not in dispute that the first

respondent was in-charge of Chhattisgarh State unit of

the Indian National Congress Party. While so, had made

certain statements agsint the complaint belonging to

Bharatiya Janata Party, so as to tarnish his image. In such

circumstances, the complainant had filed the criminal

complaint against the first respondent, which had been

taken on file, by the Judicial Magistrate, First Class, Raipur,

State of Chhattisgarh, on 6-4-2009. As soon as the news

of the criminal complaint had spread, the newspapers,

wanting to get clarifications, with regard to the said

incident, had interviewed by first respondent to obtain

his version, which had been written in the “The Hitavada”

newspaper, in 7-4-2009. Even though the election petitioner

had filed the necessary complaint, along with the proof, to

show that the first respondent had suppressed certain

material facts at the time of the filing of the nomination,

the second respondent had not given due consideration

to the complaint made by the election petitioner. Since,

the election petition has sufficient cause of action, as well

as certain triable issues, it cannot be dismissed, in limine,

as prayed for by the first respondent, in his applications.

32. It had also been stated that the non-disclosure

of the pendency of the criminal complaint by the first

respondent is a serious issue, as it is the duty of the first

respondent to have brought it to the knowledge of the

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[PART II—SEC. 3(iii)]

second respondent/Returning Officer, as per the

provisions of Section 33-A of the Representation of the

People Act, 1951. In such a case, the claim of the first

respondent that the election petition cought to the

dismissed, in Limine, cannot be sustained. The want of

acknowledgement of the complaint made by the election

petitioner, to the second respondent/Returning Officer,

cannot be a ground for the rejection of the election

petition.

33. The election petition is not vague or vexatious,

as alleged by the first respondent. Since, the averments

made in the affidavit filed in support of the election petition

are true and correct, the prayer of the first respondent, in

Application No. 1051 of 2010, for striking out the averments

made in the election petition, cannot be sustained, in view

of the decision of the Supreme Court, in D. Ramachandran

vs. R. V. Janakiraman [(1999) 3 SCC. 267]. Once it is found

that the election petition has the necessary cause of action

and triable issues, it cannot be rejected, in limine, without

a proper trial. Since, the filing of the paper and the serving

of the notice of the election petition and the relevant

documents on the first respondent, cannot be ground for

rejection of the election petition, in limine, as it has been

done to the satisfaction of the Registry of the High Court.

Therefore, the applications filed by the first respondent,

in Application Nos. 1049, 1050 and 1051 of 2010, are devoid

of merits and they are liable to be dismissed.

34. The main contention of Mr. S. Subramaniam

Balaji, the learned counsel appearing for the petitioner is

the election petition, is that the first respondent had sworn

to his affidavit, on 20-4-2009, and has submitted it along

with his nomination paper, to the second respondent/

Returning Officer. In the said affidavit, he had declared

that he is not accused of any offence punishable with

imprisonment for two years or more in a pending case, in

which charge had been framed by the Court of competent

jurisdiction, even though a criminal case had been

registered against him, in Criminal Case No. 385 of 2009,

on the file of the Judicial Magistrate, First Class, Raipur,

State of Chhattisgarh, under Sections 499 and 500 of the

Indian Penal Code, 1860. As such, the first respondent had

incurred a serious disqualification by failing to comply with

the mandate of Section 38-A of the Representation of the

People Act, 1951. In such circumstances, the election of the

first respondent to the 13th Lok Sabha, from Puducherry

Parliamentary Constituency, for which the result had been

declared, on 16-5-2009, would be null and void.

35. The learned counsel appearing for the petitioner

had also submitted that the first respondent was holding

the position as an observer for Chhattisgarh State unit of

the Indian National Congress party during the run up to

the Parliamentary Elections of 2009. While so, Ajay

Chandrakar, Former Minister, Panchayat and Rural

Development, State of Chhattisgarh, had instituted a

complaint, under Sections 499 and 500 of the Indian Penal

Code, 1860, before the Court of the Judicial Magistrate,

First Class, Raipur, State of Chhattisgarh, against the first

respondent. On 6-4-2009, the Judicial Magistrate, First

Class, Raipur, had registered the complaint filed, in Criminal

Case No. 385 of 2009, and had ordered summons to the

first respondent. On 6-4-2009, the complainant had given

a press conference at Raipur, informing about the criminal

case registered against the first respondent. Such

information had been published in the English daily “The

Hitavada”, as a news item. The first respondent had also

commented on it saying that he would be submitting his

reply to the Court, whenever the need arose. As such, it is

clear that the first respondent had known about the

pendency of the criminal complaint against him, at the

time of the filing of his affidavit before the second

respondent, along with his nomination paper, on 20-4-2009.

Thus, it is clear that the first respondent had wilfully and

dishonestly suppressed certain material facts, which he

should have mentioned in his own affidavit filed before

the second respondent, on 20-4-2009, in accordance with

the provisions of Section 33-A of the Representation of

the People Act, 1951.

36. The learned counsel appearing for the petitioner

had also stated that the mala fide and fraudulent act of the

first respondent had substantially affected the election of

the Puducherry Parliamentary Constituency, held in the

year, 2009, and that the election of the first respondent to

the 13th Lok Sabha, from Puducherry Parliamentary

Constituency, declared on 16-5-2009, is null and void.

37. The learned counsel appearing for the petitioner

appelants had relied on the following decisions in support

of his contentions :

37.1. In D. Ramachandran vs. R. V. Jankiraman (1999)

3 SCC. 267), the Supreme Court had held as follows :

“8. We do not consider it necessary to refer in detail

to any part of the reasoning in the judgment;

instead, we proceed to consider the arguments

advanced before us on the basis of the pleadings

contained in the election petition. It is well settled

that in all cases of preliminary objection, the test

is to see whether any of the reliefs prayed for

could be granted to the appellant if the averments

made in the petition are proved to be true. For the

purpose of considering a preliaminary objection,

the averments in the petition should be assumed

to be true and the court has to find out whether

those averments disclose a cause of action or a

triable issue as such. The court cannot prove

into the facts on the basis of the controversy

raised in the counter.

9. Under Order 6 Rule 16, the court is enabled to

strike out a pleading (a) which may be

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unnecessary, scandalous, frivolous or vexatious;

or (b) which may tend to prejudice, embarrass or

delay the fair trial of the suit; or (c) which is

otherwise an abuse of the process of the court.

We have already pointed out that it is not the

case of the first respondent that the pleading in

the election petition is vitiated by all or any one

of the aforesaid defects mentioned in the Rule.

Hence striking out parts of the pleading in this

case was not at all justified.

10. On the other hand, Rule 11 of Order 7 enjoins the

court to reject the plaint where it does not disclose

a cause of action. There is no question of striking

out any portion of the pleading under this Rule.

The application filed by the first respondent in

OA No. 36 of 1997 is on the footing that the

averments in the election petition did not contain

the material facts giving rise to a triable issue or

disclosing a cause of action. Laying stress upon

the provisions of Order 7 Rule 11(a), learned

Senior Counsel for the first respondent took us

through the entire election petition and submitted

that the averments therein do not disclose a cause

of action. On a reading of the petition, we do not

find it possible to agree with him. The election

petition as such does disclose a cause of action

which if unrebutted could void the election and

the provisions of Order 7 Rule 11(a) CPC, cannot

therefore be invoked in this case. There is no

merit in the contention that some of the

allegations are bereft of material facts and as such

do not disclose a cause of action. It is elementary

that under Order 7 Rule 11 (a) CPC the court cannot

dissect the pleading into several parts and

consider whether each one of them discloses a

cause of action. Under the Rule, there cannot be

a partial rejection of the plaint or petition. See

Roop Lal Sathi v. Nachhattar Singh Gill (1992) 3

SCC 487. We are satisfied that the election

petition in this case could not have been rejected

in limine without a trial.”

37.2. In Peoples Union for Civil Liberties (PUCL) Vs.

Union of India (AIR 2003 SC 2363), the Supreme Court had

held that the voters right to know the antecedents of

contesting candidates is a facet of Article 19(1) (a) and

such disclosure is necessary for the survival of true

democracy.

37.3. In Union of India Vs. Association for

Democratic Reforms (AIR 2002 SC 2112), it has been held

that the word ‘election’ in Article 324 of the Constitution

of India includes the entire process of election, which

consists of several stages. It embraces many steps, some

of which have an important bearing on the process of

choosing a candidate.

38. Per contra, Mr. G. Masilamani, the learned senior

counsel appearing for Mr. Mani Sundargopal, the learned

counsel appearing for the first respondent, had submitted

that the only substantial ground raised by the petitioner

in the election petition is that the first respondent had

wilfully suppressed certain material facts by failing to

disclose, in his affidavit filed along with the nomination

paper before the second respondent/Returning Officer,

the fact that a criminal complaint had been registered

against him in the file of the Judicial Magistrate, First Class,

Raipur, State of Chhattisgarh, under Sections 499 and 500

of the Indian Penal Code, 1860.

39. In learned counsel had further submitted that

the petitioner had failed to show as to how the non-

compliance of the provisions of Section 33-A of the

Representation of the People Act, 1951, by the first

respondent, could be a valid ground for setting aside the

election of the first respondent as a member of the 13th

Lok Sabha, representing Puducherry constituency, in the

Parliamentary Elections held in the year, 2009.

40. The learned counsel had further submitted that

the grounds, on which the election of a candidate can be

declared to be void, had been, specifically, set out in Section

100 of the Representation of the People Act, 1951. While

so, it is not open to the petitioner to state that the non-

complaince of the provisions of Section 33-A of the

Representation of the People Act, 1951, could also be a

ground for setting aside the election of the first respondent.

41. It has been further stated that, according to

Section 33-A(1)(i) of the Representation of the People Act,

1951, a candidate is expected to furnish information, if he

is accused of any offence punishable with imprisonment

for two years or more in a pending case, in which a charge

has been framed by the court of competent jurisdiction.

However, in the present case, the first respondent had no

obligation, whatsoever, to furnish the information, with

regard to a complaint, said to have been registered on the

file of the Judicial Magistrate, First Class, Raipur, State of

Chhattisgarh, in Criminal Case No. 385 of 2009, under

Sections 499 and 500 of the Indian Penal Code, 1860, since,

the alleged offence, even if it had been committed, would

only entitle the Magistrate concerned to impose the

punishment of simple imprisonment on the accused for a

term which may extend to two years or with fine or with

both, as per Section 500 of the Indian Penal Code, 1860.

As such, there is no ground made out by the petitioner,

even under Section 33-A of the Representation of the

People Act, 1951, to set aside the election on the ground

that the first respondent had failed to disclose certain

material particulars, in his affidavit filed along with the

nomination paper before the second respondent. Therefore,

the election petition filed by the petitioner is misconceived

and malicious in nature and it is liable to be dismissed by

this Court, as devoid of merits, with exemplary costs.

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[PART II—SEC. 3(iii)]

42. The learned counsel had also submitted that an

election petition calling in question any election may be

presented, under Section 81 of the Representation of the

People Act, 1951, on one or more of the grounds specified

in sub-section 1 of Sections 100 and 101 of the

Representation of the People Act, 1951.

43. The learned counsel appearing for the first

respondent had placed before this Court the decision of

the Supreme Court, in Union of India Vs. Association for

Democratic Reforms (AIR 2002 SC 2112) to show that the

constitutionality of the amendment made in the

Representation of the People Act, 1951, introducing Section

33-A had been affirmed by the Supreme Court. However,

he had also stated that Section 33-B introduced in the Act,

by way of an amendment, had been quashed by the

decision of the Supreme Court, reported in Peoples Union

for Civil Liberties (PUCL) Vs. Union of India (AIR 2003 SC

2363).

44. The learned counsel appearing for the first

respondent had laid stress on the fact that the petitioner

in the election petition had not disclosed the material facts,

as required under the law. Non disclosure of material fact

is fatal to the maintainability of the election petition. He

had also submitted that the provisions of the statutory

law applicable to case would alone apply, for the institution

of an election petition and not the general principles of

common law. He had also pointed out that the main relevant

provisions of the Representation of the People Act, 1951,

which would be directly applicable to the facts of the case

in hand, are Sections 33-A, 80, 81, 83, 86, 100, 101, 123 and

125-A of the Representation of the People Act, 1951.

45. The learned counsel had also submitted that the

only charge made by the petitioner in the election petition

is the alleged non-disclosure of certain information, as

mandated under Section 33-A of the Representation of

the People Act, 1951. However, the petitioner in the election

petition had not shown as to how the first respondent can

be imputed with the knowledge of the English newspaper

“The Hitavada” that is said to have been published in the

State of Chhattisgarh. No certified copies of the complaint,

the decuments relating to the registration of the case and

the summons, said to have been issued to the first

respondent by the Judicial Magistrate, First Class, Raipur,

State of Chhattisgarh, had been filed before this Court, as

Exhibits. The petitioner had not shown as to how it is

obligatory on the part of the first respondent to disclose,

in his affidavit, filed along with the nomination paper,

certain news, that is said to have ppeared in the newspaper,

“The Hitavada”, in the State of Chhattisgarh.

46. The learned counsel had also pointed out that

Sections 200, 201, 202, 203, 204 and 205 of the Civil

Procedure Code, 1908, do not contemplate registration of

a private complaint. A lengthy procedure has been

contemplated for the registration of a private complaint.

Further, nowhere in the affidavit filed in support of the

election petition, the petitioner had stated that summons

had been served on the First respondent before 20-4-2009,

when he had submitted the affidavit, along with the

nomination paper, before the second respondent/Returning

Officer. Further, the affidavit filed by the petitioner does

not state that a charge had been framed against the first

respondent, based on which summons had been served

on him.

47. It had also been stated that material facts had

not been pleaded and the materials relating to the pleadings

had not been produced before this Court. It had also been

pointed out that Annexure No. 6 is not relevant to the

election petition.

48. The learned counsel had also submitted that it

had not been shown by the petitioner as to how the

election for the Puducherry Parliamentary Constituency

held in the year, 2009, had been substantially affected, as

alleged in the election petition.

49. The learned counsel had also submitted that

after striking off the averments made in the election petition,

as prayed for in the application, in Application No. 1051

of 2010, no triable issue would be available in the election

petition for this Court to consider during the trial. Since,

no cause of action had been made out by the election

petitioner, the election petition is liable to be rejected,

summarily, at the threshold.

50. The learned counsel had also submitted that the

words in phrase found in Section 33-A(1)(i) of the

Representation of the People Act, 1951, “for two years or

more” should be read together. Section 33-A of the

Representation of the People Act, 1951, reads as follows :

“33-A. Right to information—(1) A candidate shall, apart

from any information which he is required to

furnish, under this Act or the rules made

thereunder, in his nomination paper delivered

under sub-section (1) of section 33, also furnish

the information as to whether.

(i) he is accused of any offence punishable with

imprisonment for two years or more in a pending

case in which a charge has been framed by the

Court of competent jurisdiction ;

(ii) he has been convicted of an offence [other than

any offence referred to in sub-section (1) or sub-

section (2), or covered in sub-section (3), of

section 8] and sentenced to imprisonment for one

year or more.

(2) The candidate or his proposer, as the case may

be, shall, at the time of delivering to the returning

officer the nomination paper under sub-section (1)

of section 33, also deliver to him an affidavit sworn

by the candidate in a prescribed form verifying the

information specified in sub-section (1).

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(3) The returning officer shall, as soon as may be

after the furnishing of information to him under

sub-section (1), display the aforesaid information

by affixing a copy of the affidavit, delivered under

sub-section (2), at a conspicuous place at his

office for the informationn of the electors relating

to a constituency for which the nomination paper

is delivered.”

51. It has also been submitted that the phrase “upto

two years” found in Section 500 of the Indian Penal Code,

1860, does not fall under the ambit of the provisions of

Section 33-A of the Representation of the People Act, 1951.

52. The learned conunsel had also submitted that

Section 33-A of the Representation of the People Act, 1951,

cannot be a ground for setting aside the election of the

first respondent for the reason that the grounds for an

election to be declared as void are specified in Sections

100 and 101 of the Representation of the People Act, 1951,

as per Section 81 of the said Act Since, no ground had

been made out in the present case, in accordance with

Section 100 of the Representationn of the People Act, 1951,

the election petition filed by the petitioner is contrary to

Section 81 of the said Act. In fact, the election petition

filed by the petitioner does not even mention Section 100

of the said Act. Even assuming, without admitting, that

there was a wilful suppression of a material fact, which

was required to be disclosed by the contesting candidate,

under Section 33-A of the Representation of the People

Act, 1951, it cannot be a ground under Section 100 of the

Representation of the People Act, 1951. In fact, Section

125-A of the Representation of the People Act, 1951,

provides the penality for the failure of a candidate to frnish

information relating to sub-section 1 of Section 33-A of

the Act, as imprisonment for a term, which may extend to

six months, or with fine, or with both. Based on the said

Section, the petitioner in the election petition had filed the

criminal complaint, dated 15-4-2010, on the file of the Chief

Judicial Magistrate, Puducherry, under Section 200 of the

Criminal Procedure Code, 1973, read with Section 125-A of

the Representation of the People Act, 1951, and under

Section 177 of the Indian Penal Code, 1860. The criminal

complaint, which had been filed, belatedly, has been

dismissed as not maintainable, on 5-5-2010. The said fact

had not been placed before this Court, by the petitioner,

when the election petition came up for hearing, on 21-6-

2010 and on 29-6-2010.

53. The learned counsel had also submitted that the

election petition, is not maintainable, also for the reason

that the procedural formalities had not been complied with

in the filing of the said petition, like the supplying of the

duly certified copies of the translated version of the

complaint, said to have been made before the Judicial

Magistrate, First Class, Raipur, State of Chhattisgarh. Further,

only xerox copies of the newspaper report had been produced

at the time of the filing of the election petition.

54. The learned counsel appearing for the first

respondent had also placed before this Court the following

decisions in support of his contentions :

54.1. In Anil Vasudev Salgaonkar Vs. Naresh Kushali

Shigaonkar (2009) 9 SCC. 310, the Supreme Court had held

as follows :

“47. The question of material facts in the election

petition was comprehensively dealt with by this

Court in Azhar Hussain case Vs. Rajiv Gandhi

(1986) Supp. SCC 315). The Court observed that

it is not disputed that the Code of Civil Procedure

applies to the trial of an election petition by virtue

of Section 87 of the Representation of the People

Act, 1951, Section 87(1) and Section 87(2) of the

Act apply to the election petition.

48. Section 87(1) of the Act reads as under :

“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 of suits :

Provided that the High Court shall have the

discretion to refuse, for reasons to be recorded

in writig, to examine any witness or witnesses if

it is of the opinion that the evidence of such

witness or witnesses is not material for the

decision of the petition or that the party

tendering such witness or witnesses is doing

so on frivolous grounds or with a view to delay

the proceedings.”

49. In this view of the matter, the court trying the

election petition can act in exercise of the powers

of the Code including order 6 rule 16 and 7 Rule

11 (a) of the code. These provisions are set out

as under :

‘‘16. Striking out pleadings. The court may at any

stage of the proceedings order to be struck out

or amended any matter in any pleading.

(a) which may be unnecessary, scandalous, frivolous

or vexatious, or

(b) which may tend to prejudice, embarrass or delay

the fair trial of the suit, or

the court.

11. Rejection of plaint, The plaint shall be rejected in

the following cases :

(a) where it does not disclose a cause of action.”

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[PART II—SEC. 3(iii)]

50. The position is well settled that an election

petition can be summarily dismissed if it does

not furnish the cause of action in exercise of the

power under the Code of Civil Procedure.

Appropriate orders in exercise of powers under

the Code can be passed if the mandatory

requirements enjoined by Section 83 of the Act

to incorporate the material facts in the election

petition are not complied with :

51. This Court in Samant N. Balkrishna Vs. George

Fernandes (1969) 3 SCC. 238) has expressed itself

in no uncertain terms that the omission of a single

material fact would lead to an incomplete cause

of action and that an election petition without

the material facts relating to a corrupt practice is

not an election petition at all. In Udhav Singh V.

Madhav Rao Scindia (1977) 1 SCC 511) the law

has been enunciated that all the primary facts

which must be proved by a party to establish a

cause of action or his defence are material facts.

In the context of a charge of corrupt practice it

would mean that the basic facts which constitute

the ingredients of the particular corrupt practice

alleged by the petitioner must be specified in order

to succeed on the charge. Whether in an election

petition a particular fact is material or not and as

such required to be pleaded is dependent on the

nature of the charge levelled and the

circumstances of the case. All the facts which are

essential to clothe the petition with complete

cause of action must be pleaded and failure to

plead even a single material fact would amount

to disobedience of the mandate of Section

83(1)(a). An election petition therefore can be and

must be dismissed if it suffers from any such vice.

The first ground of challenge must therefore fall.

55. In Harkirat Singh V. Amrinder Singh (2005) 13 SCC

511 this Court again reiterated the distinction

between “material facts” and “material particulars”

and observed as under : (SCC p. 527, paras 51-52).

“51. A distinction between ‘material facts’ and

‘particulars’, however, must not be overlooked.

‘Material facts’ are primary or basic facts which

must be pleaded by the plaintif or by the defendant

in support of the case set up by him either to

prove his cause of action or defence, ‘Particulars’,

on the other hand, are details in support of material

facts pleaded by the party. The amplify, refine

and embellish material facts by giving distinctive

touch to the basic contours of a picture already

drawn so as to make if full, more clear and more

informative. ‘Particulars’ thus ensure conduct of

fair trial and would not take the opposite party

by surprise.

52. All ‘material facts’ must be pleaded by the party

in support of the case set up by him. Since the

object and purpose is to enable the opposite party

to know the case he has to meet with in the

absence of pleading a party cannot be allowed to

lead evidence. Failure to state even a single

material fact, hence, will entail dismissal of the

suit or petition. Particulars, on the other hand,

are the details of the case which is in the nature

of evidence a party would be leading at the time

of trial.”

57. It is settled legal position that all “material facts”

must be pleaded by the party in support of the

case set up by him within the period of limitation.

Since the object and purpose is to enable the

opposite party to know the case he has to meet

with, in the absence of pleading, a party cannot

be allowed to lead evidence. Failure to state even

a single material fact will entail dismissal of the

election petition. The election petition must

contain a concise statement of “material facts”

on which the petitioner relies.

60. According to the appellant, in the election

petition, there was no averment whether the bore

wells were dug with the consent and/or active

knowledge of the appellant. This averment was

absolutely imperative and the failure to mention

such an important averment in the petition is fatal

for the election petitioner (the respondent herein)

and the election petition is liable to be summarily

dismissed on that ground.

61. The legal position has been crystallised by a

series of the judgments of this Court that all those

facts which are essential to clothe the election

petitioner with a complete cause of action are

“material facts” which must be pleaded, and the

failure to place even a single material fact amounts

to disobedience of the mandate of Section 83(1)(a)

of the Act.”

54.2. In Ram Sukh Vs. Dinesh Aggarwal [(2009) 10 SCC

541], the Supreme Court had held as follows :

“8. Before examining the merits of the issues raised

on behalf of the election petitioner with reference

to the relevant statutory provisions, it would be

appropriate to bear in mind the observations of

this Court in Jagan Nath V. Jaswant Singh (AIR

1954 SC 210). Speaking for the Constitution

Bench, Mehr Chand Mahajan, C. J., had said that

the statutory requirement of election law must be

strictly observed and that the election contest is

not an action at law or a suit in equity, but purely

a statutory proceeding unknown to the common

law and that the Court possesses no common

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law power. It is also well settled that the success

of a candidate who has won at an election should

not be lightly interfered with and any petition

seeking such interference must strictly conform

to the requirements of the law. Nevertheless, it is

also to be borne in mind that one of the essentials

of the election law is to safeguard the purity of

the election process and, therefore, the courts

must zealously ensure that people do not get

elected by flagrant breaches of that law or by

indulging in corrupt practices, as enumerated in

the Act.

9. In this backdrop, we may now turn to the

procedural provisions in the Act insofar as they

are relevant for our purpose :

“81. Presentation of petitions. (1) An election petition

calling in question any election may be

presentated 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 then

one returned candidates at the election and the

dates of their election are different, the later of

those two dates.

Explanation : In this sub-section, ‘elector’ means

a person who was entitled to vote at the election

to which the election petition relates, whether he

has voted at such election or not.

(3) Every election petition shall be accompanied by

as many copies thereof as there are respondents

mentioned in the petition, and every such copy

shall be attested by the petitioner under his own

signature to be a true copy of the petition.

83. Contents of petition : (1) An election petition

(a) shall contain a concise statement of the material

facts on which the petitioner relies ;

(b) shall set forth fully particulars of any corrupt

practice that the petitioner alleges, including as

full a statement as possible of the names of the

parties alleged to have committed such corrupt

practice and the date and place of the commission

of each such practice; and

the manner laid down in the Code of Civil

Procedure, 1908 (5 of 1908) for the verification of

pleadings :

Provided that where the petitioner alleges any

corrupt practice, the petition shall also be

accompanied by an affidavit in the prescribed

form in support of the allegation of such corrupt

practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall

also be signed by the petitioner and verified in

the same manner as the petition.

86. Trial of election petitions. (1) The High Court shall

dismiss an election petition which does not comply with the

provisions of Section 81 of 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) or

Section 98.

(2) As soon as may be after an election petition has

been presented to the High Court, it shall be

referred to the Judge or one of the Judges who

has or have been assigned by the Chief Justice

for the trial of election petitions under sub-

section (2) of Section 80-A.

(3) Where more election petitions than one are

presented to the High Court in respect of the

same election, all of them shall be referred for trial

to the same Judge who may, in his discretion, try

them separately or in one or more groups.

(4) Any candidate not already a respondent shall,

upon application made by him to the High Court

within fourteen days from the date of

commencement of the trial and subject to any

order as to security for costs which may be made

by the High Court, be entitled to be joined as a

resondent.

Explanation : For the purposes of this sub-

section and of Section 97, the trial of a petition

shall be deemed to commence on the date fixed

for the respondents to appear before the High

Court and answer the claim or claims made in the

petition.

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

and otherwise as it may deem fit, allow the

particulars of any corrupt practice alleged in the

petition to be amended or emplified 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.

(6) The trial of an election petition shall, so far as is

practicable consistently with the interests of

justice in respect of the trial, be continued from

day to day until its conclusion, unless the High

Court finds the adjournment of the trial beyond

the following day to be necessary for reasons to

be recorded.

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[PART II—SEC. 3(iii)]

(7) Every election petition shall be tried as

expeditiously as possible and endeavour shall

be made to conclude the trial within six months

from the date on which the election petition is

presented to the High Court for trial.

(8) Procedure before the High Court : (1) Subject to

the provisions of this Act and of any rules made

thereunder, every election petition shall be trial

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

accordance with the procedure applicable under

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

the trial of suits :

Provided that the High Court shall have the

discretion to refuse, for reasons to be recorded

in writing, to examine any witness or witnesses

if it is of the opinion that the evidence of such

witness or winesses is not material for the

decision of the petition or that the party

tendering such witness or witnesses is doing

so on frivolous grounds or with a view to delay

the proceedings.

(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.”

From the aforequoted provisions, it would appear

that Section 81 enables a petitioner to call in

question any election on one or more of the

grounds specified in sub section (1) of Section

100 of the Act.

14. The requirement in an election petition as to the

statement of material facts and the consequences

of lack of such disclosure with reference to

Sections 81, 83 and 86 of the Act came up for

consideration before a three-Judge Bench of this

Court in Samant N. Balkrishna V. George

Fernandes [(1969) 3 SCC 238], Speaking for the

three-Judge Bench, M. Hidayatullah, C. J., inter

alia, laid down that :

(i) Section 83 of the Act is mandatory and requires

first a concise statement of material facts and

then the fullest possible particulars;

(ii) ommission of even a single material fact leads to

an incomplete cause of action and statement of

claim becomes bad;

(iii) the function of particulars is to present in full a

picture of the cause of action and to make the

opposite party understand the case he will have

to meet;

(iv) material facts and particulars are distinct matters

material facts will mention statements of fact and

particulars will set out the names of persons with

date, time and place; and

(v) 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.

15. At this juncture, in order to appreciate the real object

and purport of the phrase “material facts”,

particularly with reference to election law, it would

be appropriate to notice the distinction between

the phrases “material facts” as appearing in clause

(a) and “particulars” as appearing in clause (b) of

sub-section (1) of Section 83. As stated above,

“material facts” are primary or basic facts which

have to be pleaded by the petitioner to prove his

cause of action and by the defendant to prove his

defence. “Particulars”, on the other hand, are details

in support of the material facts, pleaded by the

parties. They amplify, refine and embellish material

facts by giving distinctive touch to the basic

contours of a picture already drawn so as to make it

full, more clear and more informative. Unlike

“material facts” which provide the basic

foundation on which the entire edifice of the

election petition is built, “particulars” are to be

stated to ensure that the opposite party is not

taken by surprise.

16. The distinction between “material facts” and

“particulars” and their requirement in an election

petition was succinctly brought out by this Court

in Virender Nath Gautam V. Satpal Singh [(2007) 3

SCC 617] wherein C. K. Thakker, J., stated thus :

(SCC pp. 631-32, para 50).

“50. There is distinction between facts probanda (the

facts required to be proved i.e. material facts)

and facts probantia (the facts by means of which

they are proved i.e. particulars or evidence). It is

settled law that pleadings must contain only facts

probanda and not facts provantia. The material

facts on which the party relies for his claim are

called facta probanda and they must be stated in

the pleadings. But the facts or facts by means of

which facta probanda (material facts) are proved

and which are in the nature of facts probantia

(particulars or evidence) need not be set out in

the pleadings. They are not facts in issue, but

only relevant facts required to be proved at the

trial in order to establish the fact in issue.”

21. We may now advort to the facts at hand to examine

whether the election petition suffered from the

vice of non-disclosure of material facts as

stipulated in Section 83(1) (a) of the Act. As

already stated the case of the election petitioner

is confined to the alleged violation of Section

100(1)(d)(iv). For the sake of ready reference, the

said provision is extracted below :

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

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

High Court is of opinion.

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(d) that the result of the election, insofar as it

concerns a returned candidate, has been materially

affected.

(iv) by any non-complaince 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

returned candidate to be void.”

It is plain that in order to get an election declared

as void under the said provision, the election

petitioner must aver that on account of non-

compliance with the provisions of the Constitution

or of this Act or of any rules or orders made under

the Act, the result of the election, insofar as it

concerned the returned candidate, was materially

affected.

24. It needs little reiteration that for the purpose of

Section 100(1)(d)(iv), it was necessary for the

election petitioner to aver specifically in what

manner the result of the election insofar as it

concerned the first respondent was materially

affected due to the said omission on the part of

the Returning Officer. Unfortunately, such

averment is missing in the election petition.”

55. Mr. G. Rajagopalan, the learned senior counsel

appearing for M/s. G. R. Associates, appearing for the

second respondent, had submitted that the second

respondent is not a necessary party to the election petition

and therefore, he should be deleted from the proceedings,

Section 82-A of the Representation of the People Act, 1951,

provides as to who should be made as a respondent in the

election petition.

56. In support of the above said contention, he had

relied on the decision of the Supreme Court, reported in

Yadiyurappa Vs. Mahalingappa and another (AIR 2001 SC

4041) wherein, it had been held as follows :

“8. It is therefore, clear, on the authorities of this

Court, that those who are mentioned in Section

82 of the said Act must be made parties to an

election petition and, if they are not, the election

petition is one which does not comply with the

provisions of Section 82 and must, therefore, be

dismissed by reason of the term of Section 86 (1),

it does not, however, follow that if to an election

petition parties other than those who are

necessary parties under Section 82 have been

impleaded, the election petition is one that does

not comply with the provisions of Section 82 and

must be dismissed. Such a petition can be

amended by striking out from the array of parties

those additionally impleaded.”

57. It has also been stated that the filing of the

affidavit alone, by a candidate, is mandatory. However,

the correctness of the statement made in the affidavit is

not relevant for the purpose of scrutinising the nomination,

as held by the Supreme Court, in Peoples Union for Civil

Liberaties (PUCL) Vs. Union of India (AIR 2003 SC 2363).

58. It has also been submitted that, during the

general elections, held in the year, 2009, the scrutiny of

the nomination papers filed by 33 candidates was done,

on 25-4-2009, and it was attended by the candidates and

their election agents. The petitioner was an election agent

of the Bharatiya Janata Party’s candidate. Though he was

present at the time of the scrutiny, he did not raise any

objection. In such circumstances, it has been prayed that

it is just and necessary that this Court may be pleased to

dismiss the election petition, insofar as the second

respondent is concerned.

59. In view of the averments made in the affidavit

filed in support of the election petition and in the counter

affidavit filed on behalf of the first respondent, and in

view of the submissions made by the learned counsels

appearing for the petitioner, as well as the respondents,

this Court finds that the election petition filed by the

petitioner, under Section 80-A and 81, read with Section

33-A of the Respresentation of the People Act, 1951, is not

maintainble.

60. The main contention raised by the petitioner is

that, even though the first respondent had sworn to an

affidavit, filed along with his nomination paper, on

20-4-2009, he had suppressed certian material facts relating

to a criminal complaint filed against him before the Judicial

Magistrate, First Class, Raipur, State of Chhattisgarh,

registered as criminal case No. 385 of 2009, under Sections

499 and 500 of the Indian Penal Code, 1860. Non-disclosure

of the said fact, which is a mandatory requirement, as per

Section 33-A (1)(i) of the Respresentation of the People

Act, 1951, would render the election of the first

respondent, as a member of the 13th Lok Sabha,

representing the Puducherry Parliamentary Constituency,

as null and void.

61. It is also the contention of the petitioner that

the first respondent had sworn to an affidavit by falsely,

stating that no criminal case was pending against him on

the date of the filing of the said affidavit. The petitioner

has alleged that a complaint had been filed against the

first respondent, before the Judicial Magistrate, First Class

Raipur, State of Chhatisgarh, under Sections 499 and 500

of the Indian Penal Code, 1860 and the information about

the said matter had been published, from Raipur Nagpur

and Jabalpur, in the English newspaper, “The Hitavada”.

However, the first respondent had not disclosed such

information in his affidavit filed, on 20-4-2009, before the

second respondent, in spite of his having knowledge about

the said complaint, as seen from his reply published in the

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[PART II—SEC. 3(iii)]

said newspaper. Even though such a contention had been

raised by the petitioner, he has not been in a position to

show that the first respondent had official information

about the criminal complaint said to have been filed against

him, before the Judicial Magistrate, First Class, Raipur,

State of Chhattisgarh, under Sections 499 and 500 of the

Indian Penal Code, 1860. Further, the petitioner has not

been in a position to show that the non disclosure of such

information, as per Section 33-A of the Representation of

the People Act, 1951, would be a sufficient ground for

declaring the election of the first respondent, as null and

void.

62. No material facts or material particulars have

been furnished by the petitioner, in the election petition,

to support and sustain his allegation that the first

respondent had suppressed material information known

to him, authentically, which he was required to disclose in

his affidavit filed along with his nomination paper, as per

Section 33-A (1)(i) of the Representation of the People

Act, 1951.

63. Further, from the materials placed before this

Court, it cannot be said that the first respondent had

wilfully suppressed certain material facts and particulars,

which would have, substantially, affected the out come of

the Puducherry Parliamentary Election, held in the year,

2009. The petitioner has not given the necessary particulars

to substantiate his claim that the non-disclosure of the

information, by the first respondent, as alleged by the

petitioner, had substantially, affected the final outcome of

the election.

64. Further, from the reading of Section 33-A(1)(i) of

the Representation of the People Act, 1951, it is clear that

it is mandatory for a candidate to furnish the information

as to whether he is accused of any offence punishable

with imprisonment for two years or more in a pending case

in which the charge has been framed by the court of

competent jurisdiction. From the said Section, it is also

clear that the candidate would be required to furnish such

information only if the offence is punishable with

imprisonment “for two years or more”, in a pending case,

in which a charge has been framed by the Court of

competent jurisdiction. However, from the facts of the

present case, it is clear that a complaint is said to have

been made against the first respondent before the Judicial

Magistrate, First Class, Raipur, State of Chhattisgarh, under

Sections 499 and 500 of the Indian Penal Code, 1860. The

punishment for defamation, prescribed under Section 500

of the Indian Penal Code, 1860, is simple imprisonment for

a term which may extend to two years or with fine or with

both. As such, it cannot be said that the alleged non-

disclosure of material facts, by the first respondent, even

if it is true, would fall under Section 33(A)(1)(i) of the

Representation of the People Act, 1951, which talks about

the information relating to offence punishable with

imprisonment of two years or more.

65. According to Section 81 of the Representation

of the People Act, 1951, the election petition calling in

question any election may be presented on one or more of

the grounds specified in sub-section 1 of Sections 100

and 101 of the said Act, to the High Court, by any candidate

at such election or any elector, within the time limit

specified therein. Therefore, the non-disclosure of the

information regarding the complaint, said to have been

filed against the first respondent, under Section 499 of the

India Penal Code, 1860, for defamation, would not be a

ground to declare the election of the first respondent, as

null and void.

66. There is nothing on record to show that the first

respondent had official knowledge of the complaint, said

to have been made against him before the Judicial

Magistrate, First Class, Raipur, State of Chhattisgarh. Since,

it has not been shown that summons had been served on

the first respondent, in respect of the said complaint, the

newspaper reports will not, by themselves, be sufficient

to impute knowledge of the complaint on the first

respondent. While so, it cannot be said that the first

respondent had, willfully and fraudulently suppreshed

certain material facts regarding the complant, in his

affidavit, filed along with the nomination paper, before the

second respondent, on 20-4-2009. Further, only xerox

copies of the newspaper reports had been filed before this

Court. In the absence of material facts and material

particulars to support the allegation that the first

respondent had wilfully suppressed material information in

the sworn affidavit filed by the first respondent, before the

second respondent, on 20-4-2009, it cannot be held that the

first respondent had incurred a disqualification, as per

Section 33-A of the Representation of the People Act, 1951,

as alleged by the petitiioner, in the election petition.

67. It has also been stated that the election petition

has not been filed, under Section 100 of the Representation

of the People Act, 1951. Even if it is found that the first

respondent had not disclosed certain facts relating to the

complaint, allegedly made against the first respondent,

under Section 499 of the Indian Penal Code, 1860, it cannot

be brought, under Section 33-A(1)(i) of the Representation

of the People Act, 1951, since, the punishment provided

under Section 500 of the Indian Penal Code, 1860, for

defamation, would not amount to punishment, which

would attract imprisonment of two years or more. Non

disclosure of such information may be a cause of action

for initiating proceedings against the concerned candidate,

only under Section, 125-A of the Representation of the

People Act, 1951. Realising the said position, the petitioner,

in the election petition, seems to have filed the criminal

complaint, dated 15-4-2010, on the file of the Chief Judicial

Magistrate, Puducherry, under Section 200 of the Criminal

Procedure Code, 1973, read with Section 125-A of the

Representation of the People Act, 1951, and under Section

177 of the Indian Penal Code, 1860.

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68. It has also been noted that the Chief Judicial

Magistrate, Puducherry, had dismissed the said private

criminal complaint stating that no prima facie case had

been made out for taking cognisance of the case. Therefore,

he had rejected the said complaint, in limine. The said fact

has not been disputed by the learned counsel appearing

for the petitioner.

69. It is also seen that the petitioner in the election

petition had failed to state the various material facts and

particulars in support of his allegations, like the date on

which the Judicial Magistrate, First Class, Raipur, State of

Chhattisgarh, had taken cognisance of the complaint, the

date on which the charge had been framed and the summons

had been issued against the first respondent, the date,

time and place and the manner in which the election

petitioner had informed the second respondent/Returning

Officer about the alleged criminal complaint, said to be

pending against the first respondent, and sufficient proof

for imputing knowledge on the first respondent, regarding

the complaint said to have been made against him before

the Judicial Magistrate, First Class, Raipur, State of

Chhattisgarh.

70. There is nothing on reconrd to show that the

petitioner had objected to the acceptance of the first

respondent’s nomination paper, during the scrutiny of the

nomination paper, by the second respondent. As such,

the statement made on behalf of the petitioner, that a formal

objection had been raised, at the time of the scrutiny,

before the second respondent, regarding the non-

disclosure of material information relating to the criminal

complaint said to have been made against the first

respondent, cannot be accepted.

71. The petitioner had not pleaded that summons

had been issued to the first respondent and that he had

received it before the filing of the sworn affidavit before

the second respondent, on 20-4-2009. Further, it is noted

that the petitioner has not complied with the requirements

of Section 81(3) of the Representation of the People Act,

1951, by filing the necessary number of copies, of the

election petition, duly attested by the petitioner, as true

copies of the petition. Certain other discrepencies have

also been noticed, including the dates of verification and

the filing of the election petition, as pointed out by the

learned counsel appearing for the first respondent.

72. At this juncture, this Court is conscious of the

fact that in a true democracy, the free will of the people

would have to prevail, unless it is perceivably irregular or

palpably illegal. The democratic process of elections

cannot be permitted to be curbed or scuttled, except in

accordance with the procedure established by law. While

construing the laws relating to the elections, in their atrict

sense, as intended by the legislature, it is to be kept in

mind that the rule is participation in the democratic process

and exclusion should only be an exception.

73. In such circumstances, this Court is of the

considered view that sufficient cause and acceptable

reasons have been shown by the first respondent for the

rejection of the present election petition. As such, the

election petition is liable to be dismissed, in limine, for

want of proper pleadings and for lack of cause of action

and triable issues. Hence, the election petition stands

dismissed. No costs. Consequently, connected

Applications Nos. 1049, 1050 and 1051 of 2010 are closed.

Sd/- M.J.J.

13-8-2010

[No. 82/PUDU-HP(8/2009)/2010]

By Order,

R. K. SRIVASTAVA, Secy.

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and Published by the Controller of Publications, Delhi-110054.