TaxTMI 
TaxTMI 
2005 (12) TMI 618
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....bly was announced. On January 16, 2002, Hon'ble the President of India issued a notification calling upon the electors in the State of Punjab to elect their representatives for Punjab Vidhan Sabha. Various stages of election were fixed. As per the notification, January 23, 2002 was the last date for filing nominations by candidates aspiring to be elected to Punjab Vidhan Sabha. Scrutiny of nomination papers was fixed as January 24, 2002 and the last date of withdrawal of nomination was January 28, 2002. Polling was to take place on February 13, 2002 and February 24, 2002 was the date of the counting of votes and of declaration of result. 3. The respondent herein filed his nomination from 76, Patiala Town Assembly Constituency as the candidate nominated by Congress (I) Party. The respondent was declared as elected. He was also elected as the leader of the Party and became the Chief Minister of Punjab. 4. The appellant herein-petitioner before the High Court- was an elector in the constituency from which the respondent contested the election. The petitioner filed an Election Petition in the High Court under Section 81 of the Representation of the People Act, 1951 (hereinaft....
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....l Chief Electoral Officer, during media briefing on February 6, 2002 stated that the Election Commission of India had pulled up the Punjab Government and asked the Chief Secretary of Punjab to look into the matter as to why action had not been initiated against Mr. Chahal for the alleged violation of the Election Code and for assisting the respondent. According to the petitioner, this had gone long way to show that Mr. Chahal actively participated "to the knowledge of the respondent and with the consent of the respondent" for the furtherance of his election prospects in violation of the provisions of Section 123 of the Act. The Secretary, Information & Public Relations, Government of Punjab issued a show cause notice to Mr. Chahal over his reported work for the Congress candidate. Mr. Cheema had also written to Mr. N.K. Arora, Chief Secretary, Punjab seeking action against Mr. Chahal for alleged partisan role and for his misconduct. Mrs. Usha R. Sharma further disclosed that a complaint filed by one Mr. J.S. Chowhan had been forwarded to the Election Commission of India as also to the Secretary, Information & Public Relations, Punjab recommending that action should be taken against....
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....ls of the corrupt practice had also been specified in para 9 of the petition. It was said that Mr. Mehra belonged to Kashyap Rajput community. Mr. Mehra organized a function on January 26, 2002 in favour of Congress candidate for 76, Patiala Town Assembly Constituency (of the respondent) which was presided over by Smt. Preneet Kaur, Member of Parliament, Patiala and wife of the respondent. The meeting was organized at Marriage Palace near Railway Phatak No. 22, Patiala. For the said meeting, Mr. Mehra used the office of his newly created Mehra Biradri Social Sangathan in which posters were distributed with a photograph of Mr. Mehra as Superintendent of Police in police uniform describing the respondent as 'Garibon Ka Massiha'. The name of the Sangathan was shown at the bottom. Mr. Mehra thus canvassed for the respondent in the said meeting. Those facts appeared as a news item in the English edition of the 'Tribune' dated February 5, 2002. 11. According to the petitioner, the respondent also committed corrupt practice by indirectly interfering with the free exercise of electoral rights by projecting himself as the 'Maharaja of Patiala' in the posters issue....
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....tion were liable to be struck off being unnecessary. The averments in those paras did not pertain to the period from the date of filing of the nomination papers, had no relevance and did not fall within the ambit and scope of Section 100 read with Section 123 of the Act. Contents of para 4 did not disclose material facts but the language of Section 123(7)(a) of the Act had been mechanically reproduced by the petitioner. According to the respondent, para 4 did not contain material facts as to how and in what manner the help of Mr. Chahal was sought or obtained for furtherance of the election result of the respondent, in what form the so called assistance was rendered and how it affected the electoral rights of the voters of 76, Patiala Town Assembly Constituency. Para 5 similarly did not disclose material particulars required by law. The reference to organizing, conducting and participating personally in press conferences by Mr. Chahal addressed by the respondent was vague, scandalous and frivolous. The contents failed to disclose essential ingredients of corrupt practice as contemplated by Section 123(7)(a) of the Act. The so called press conference dated January 29, 2002 was organ....
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..... The averments made in the election petition have been reiterated in the replication by giving several instances. It was repeated that corrupt practice had been adopted by the respondent. The election petition was thus required to be allowed by setting aside the election of the respondent. 22. On the basis of rival contentions of the parties, the High Court framed nine issues. It was contended on behalf of the respondent that the election petition was liable to be dismissed as preliminary objections raised by the respondent were well founded. The Court, accordingly ordered to treat issue Nos. 5 to 8 as preliminary issues which were as under: 5. Whether the election petition is liable to be dismissed as the allegations of corrupt practice are not supported by a valid and legal affidavit as mentioned in preliminary objection No. 1 and 2 of the written statement? OPR 6. Whether the election petition lacks material facts and particulars and discloses no cause of action as mentioned in preliminary objection No. 3 to 10 of the written statement? OPR 7. Whether the election petition is liable to be dismissed being incomplete as mentioned in para No. 11 of th....
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.... be treated as the statement of material facts regarding corrupt practice. 25. In respect of material facts and particulars given in para 5(i) regarding corrupt practice adopted by the respondent, the Court opined that though it had been stated that Mr. Chahal, a Gazetted Officer of the State of Punjab had helped the respondent immensely during his election and had actively been organizing and conducting personally, press conferences addressed by the respondent for the furtherance of his election prospects, no date, time and place of organizing any press conference had been mentioned by the petitioner. The Court then observed; "Whether by the use of words actively organizing, conducting and participating in press conferences without any further detail will constitute a material fact, which may lead towards formation of a complete cause of action or not. This Court feels that the answer is in the negative". 26. The Court observed that in sub-para (ii) of para 5, one instance of press conference which was allegedly held on January 29, 2002 by Mr. Chahal had been given. It was stated that Mr. Chahal organized the press conference in New Moti Bagh Palace i.e. residenc....
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....ering a single word either to the respondent or to any of the press correspondents. At the time of arguments, Shri Saggar read over a transcript of video cassette, which clearly demonstrated that at the time of press conference, no appeal was made to the electorate of the constituency of the respondent. Conference was conducted with respect to expulsion of rival candidates from the congress party. It has nowhere been pleaded as to what was the object and method of assistance provided by Bharat Inder Singh Chahal." 30. Then relying on a decision of the Supreme Court in Daulat Ram Chauhan v. Anand Sharma, [1984]2SCR419 , the Court observed that the allegations made in the election petition could not be said to be in the nature of 'material facts' as no details were given. The Court stated that in the replication, all details were given but they were "material facts" which the petitioner was required to state in his election petition and not in the replication which was filed beyond the period of limitation. Since in the election petition material facts had not been stated, the petition did not disclose a cause of action and was, therefore, liable to be dismissed. 31. Re....
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....ated that the petitioner had failed to disclose material facts as there was nothing to show that the poster was issued by the respondent or by his supporters with his consent. 36. Regarding election expenses, the Court observed that mere non disclosure of expenditure would not be a corrupt practice. It is incurring of expenditure in excess of the prescribed limit which will amount to a corrupt practice. According to the Court, very vague averments had been made simply by stating that the respondent had incurred the expenses more than the prescribed limit, but no details had been given. According to the Court, in the election petition, it was stated that the respondent had not shown expenses of press conference held on January 29, 2002 in his return of expenses but nothing had been stated as to what was the total expenditure and the details had been given only in the replication. Then referring to the video-cassette, the Court observed that only light snacks, tea and cold drinks were served to the press correspondents. The Court stated; "By taking judicial note of the same, it can be said that even if those expenses are ordered to be included in the election expenses of ....
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.... deals with contents of petition and reads thus- 83. Contents of petition.-(1) An Election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 41. Section 84 deals with relief that can be claimed by the petitioner in an election petition. Section 86 relates to trial of election petitions. It mandate....
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....nication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. (3) .... (4) .... (5) .... (6) The incurring or authorizing of expenditure in contravention of section 77. (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, n....
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....hich must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. 48. In the leadings case of Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB 135, Cotton, L.J. stated: "What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial." In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287, Scott, L.J. referring to Phillips v. Phillips observed: "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or ....
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....veral cases. In Balwan Singh v. Lakshmi Narain and Ors., [1960]3SCR91 , in an election petition, an allegation of corrupt practice of hiring or procuring vehicles by returned candidate had been made. It was contended on behalf of the respondent that full particulars as to contract of hiring vehicles had not been set out in the election petition. The petition was, therefore, liable to be dismissed. The Constitution Bench of this Court was called upon to consider the requirement of Sections 83 and 123 of the Act in the light of the allegation in the election petition. Speaking for the majority, Shah, J. (as his Lordship then was) observed that neither in the petition as originally filed nor as amended, the date and place of hiring of vehicle alleged to have been used for conveying the voters, and the names of the persons between whom the contract of hiring was settled were set out. The question, however, was whether the election petition was liable to be rejected because it did not set forth particulars of date and place of hiring the vehicle alleged to have been used in conveying voters? The Court answered the question in the negative and stated; "The corrupt practice being....
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....of particulars". 53. In R.M. Seshadri v. G. Vasantha Pai, [1969]2SCR1019 , allegation as to corrupt practice had been made in the election petition. It was alleged that the returned candidate was responsible for employing cars, hired and procured for the conveyance of the voters to the polling booths. It was contended by the returned candidate that the allegation was vague and the petition was liable to be dismissed. Rejecting the contention, the Court held that it had been sufficiently pleaded and proved that cars were in fact used. The connection with the returned candidate with the use of the cars had been specifically pleaded. In the opinion of the Court, "the rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters." 54. In S.N. Balakrishna etc. v. George Fernandez and Ors. etc., [1969]3SCR603 , the Court again considered a similar question. Referring to the relevant provisions of the Act, the Court held that Section 83 which provides that the election petition must contain a concise s....
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....at statement must appear and the particulars must be full as to the person making the statement and the necessary information". Referring to sub-section (5) of Section 86 of the Act which allows the Court the amendment in the petition, the Court stated; "The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars if a corrupt practice not previously alleged in the petition." One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other i....
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.... meet. Under Section 86(5) of the Representation of People Act if the corrupt practice is alleged in the petition the particulars of such corrupt practice may be amended or amplified. (iv) An election petition is not liable to be dismissed in limine because full particulars of corrupt practice alleged were not set out. If an objection was taken and the Tribunal was of the view that full particulars have not been set out, the petitioner has to be given an opportunity to amend or amplify the particulars. It is only in the event of non-compliance with such order to supply the particulars, that the charge which remained vague could be struck down". 56. The Court stated that rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated with a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it. 57. Strong reliance was placed by learned counsel for the respondent on Hardwari Lal before the High Court as well as be....
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.... is after all not a mere word". 60. According to the Court, the provisions of the section indicate various heads of corrupt practice, such as, obtaining by a candidate or his agent or by any other person, any assistance, or procuring such assistance or abetting of such assistance or attempting to obtain or procure such assistance. The material facts, therefore, were required to be alleged as to whether the candidate obtained or procured or abetted or attempted to obtain or procure such assistance. The Court stated; "Reading Paragraph 16 of the election petition one will search in vain to find out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and procured or attempted to obtain and procure assistance from each or some of the persons mentioned there. Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaini....
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....ven a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action nor his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election- petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge leveled, the ground relied upon and the special circumstan....
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....not and as such required to be pleaded is dependent on the nature of the charge leveled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded. Failure to plead even a single material fact would amount to non-compliance with the mandate of Section 83(1)(a) of the Act and the election petition is liable to be dismissed. 67. The Court, however, drew the distinction between 'material facts' and 'particulars'. According to the Court, 'material facts' are facts, if established would give the petitioner the relief prayed for. The test is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. 68. In S.A. Sapa and Ors. etc. v. Singora and Ors. etc., [1991]2SCR752a , this Court held that Section 83(1)(a) stipulates that every election petition shall contain a concise statement of material facts on which the petitioner relies. It means that entire bundle of facts which would constitute a complete cause of action must b....
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....wda, etc. v. T.M. Chandrashekar etc., AIR1999SC252 , referring to Udhav Singh, the Court used two expressions, 'material facts' and 'material particulars' and held that while failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time limit prescribed for filing the election petition is over, absence of material particulars can be cured at a later stage by an appropriate amendment. 72. In V.S. Achuthanandan v. P.J. Francis and Anr., [1999]2SCR99 , referring to Udhav Singh, the Court drew the distinction between 'material facts' and 'material particulars'. It was observed that material facts are preliminary facts disclosing cause of action and they have to be specifically pleaded. Failure to do so would result in rejection of the election petition. Defect in material particulars, however, can be cured at a later stage by amendment and the petition cannot be dismissed in limine on the ground of such defect. 73. In V. Narayanaswamy v. C.P. Thirunavukkarasu, [2000]1SCR292 , again the Court discussed two phrases 'material facts' and 'm....
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....vered by Clause (a) of Rule 11 of Order VII of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression "material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party. But, it is equally well settled that there is distinction between "material facts" and "particulars". Material facts are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of ....