TaxTMI 
TaxTMI 
2005 (12) TMI 618
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....39;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 (hereinafter referred to as 'the Act') questioning ....
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....ebruary 6, 2002 stated that the Election Commission of India had pulled up the Punjab Government and asked the Chief Secretary of Punjab to look into the matter as to why action had not been initiated against Mr. Chahal for the alleged violation of the Election Code and for assisting the respondent. According to the petitioner, this had gone long way to show that Mr. Chahal actively participated "to the knowledge of the respondent and with the consent of the respondent" for the furtherance of his election prospects in violation of the provisions of Section 123 of the Act. The Secretary, Information & Public Relations, Government of Punjab issued a show cause notice to Mr. Chahal over his reported work for the Congress candidate. Mr. Cheema had also written to Mr. N.K. Arora, Chief Secretary, Punjab seeking action against Mr. Chahal for alleged partisan role and for his misconduct. Mrs. Usha R. Sharma further disclosed that a complaint filed by one Mr. J.S. Chowhan had been forwarded to the Election Commission of India as also to the Secretary, Information & Public Relations, Punjab recommending that action should be taken against Mr. Chahal as complaint had been prima facie establi....
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....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 issued by the respondent and also by his supporters with his consent....
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....se paras did not pertain to the period from the date of filing of the nomination papers, had no relevance and did not fall within the ambit and scope of Section 100 read with Section 123 of the Act. Contents of para 4 did not disclose material facts but the language of Section 123(7)(a) of the Act had been mechanically reproduced by the petitioner. According to the respondent, para 4 did not contain material facts as to how and in what manner the help of Mr. Chahal was sought or obtained for furtherance of the election result of the respondent, in what form the so called assistance was rendered and how it affected the electoral rights of the voters of 76, Patiala Town Assembly Constituency. Para 5 similarly did not disclose material particulars required by law. The reference to organizing, conducting and participating personally in press conferences by Mr. Chahal addressed by the respondent was vague, scandalous and frivolous. The contents failed to disclose essential ingredients of corrupt practice as contemplated by Section 123(7)(a) of the Act. The so called press conference dated January 29, 2002 was organized and addressed by the respondent as President of the Punjab Pradesh C....
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....on 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 the preliminary objections of the written statement? OPR 8. Whether the election petition is not verified ....
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....iculars 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. residence of the respondent. Mr. Chahal was personally present with the respondent and meticulously organized each and every affair for be....
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....deo 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. Regarding a complaint made by Jagdeep Singh Chowhan to the Chief Electoral Officer, the Court observed that in the election petition it was stated that a Co....
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....nsent. 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 the respondent, the total expenses still shall remain much below the prescribed limit" 37. In view of the above findings, the Court dismissed the petition by passing the followi....
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....es; (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 mandates the High Court to dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117. (Section 117 requires the election petitioner to deposit certain amount as security for costs of the petition). Sub-sec....
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....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, namely:-- (a) gazetted officers; (b) .... (c) .... (d) members of the police forces; .... 44. Section 77 speaks of election expenses and maximum amount which can be spent. Section 78 enjoins every candidate at an election to lodge account with the District Election Officer. 45. From the above provisions, it is clear that an election petition must contain a concise sta....
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....be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial." In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287, Scott, L.J. referring to Phillips v. Phillips observed: "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or 'a further and better statement of claim' may be ordered under Rule 7." 49. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in ....
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....consider the requirement of Sections 83 and 123 of the Act in the light of the allegation in the election petition. Speaking for the majority, Shah, J. (as his Lordship then was) observed that neither in the petition as originally filed nor as amended, the date and place of hiring of vehicle alleged to have been used for conveying the voters, and the names of the persons between whom the contract of hiring was settled were set out. The question, however, was whether the election petition was liable to be rejected because it did not set forth particulars of date and place of hiring the vehicle alleged to have been used in conveying voters? The Court answered the question in the negative and stated; "The corrupt practice being the hiring or procuring of a vehicle for the conveyance of the electors, if full particulars of conveying by a vehicle of electors to or from any polling station are given, Section 83 is duly complied with, even if the particulars of the contract of hiring, as distinguished from the fact of hiring, are not given. Normally, the arrangement for hiring or procuring a vehicle, is within the special knowledge of the parties to that agreement and it is difficult to....
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....d 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 statement of material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice is mandatory. Then, drawing the distinction between 'material facts' and 'particulars', the Court observed; "Wh....
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....e alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause o....
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.... 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 before us. The High Court also passed the impugned order on the basis of the said decision. In Hardwari Lal, an election petition was filed by the petitioner alleging corrupt practice against the successful candidate. The corrupt practice as adopted by the returned candidate had been set out in paragraph 16 of the petition which read as under- "That the respondent committed the corrupt practice of obtaining and procuring or attempting to obtain and procure the assistance for the furtherance of the prospects of his election from ....
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....d out as to whether the allegations against the appellant are in regard to the assistance under both heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained and procured or attempted to obtain and procure assistance from each or some of the persons mentioned there. Obtaining or procuring or attempting to obtain or procure assistance are separate and independent forms of corrupt practice. One will guess as to whether the allegations are that the appellant committed all or one or more of the corrupt practices of obtaining, procuring, attempting to obtain or procure assistance from each of the persons mentioned there. One will also conjecture and hazard as to what assistance was obtained or procured or attempted to obtain or procure from each of the persons mentioned there, for the furtherance of the prospects of that candidate's election." (emphasis supplied) 61. Merely alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute and it will have no meaning unless and until facts are stated to show what that assistance was and how the prosp....
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....y 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 circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a). "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of clause (b) of Section 83(i) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). 'P....
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....her 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 be concisely stated in the petition. Clause (b) of the said section then requires an election petitioner to set forth 'full particulars' of any corrupt practice alleged against a returned candidate. According to the Court, those particulars are obviously different from the 'material facts' on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all the 'material facts' as well as 'full particulars', where commission of corrupt pract....
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....9; 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 'material particulars'. Drawing the distinction between the two, the Court held that while failure to plead material facts was fatal to the petition, absence of material particulars could be cured subsequently. 74. In Hari Shanker Jain v. Sonia Gandhi, AIR2001SC3689 , referring to S.N. Balakrishna, the Court held that quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. Failure to plead 'material facts' is fatal to the election petition and no amendment of the pleadings is permissib....
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....basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party. But, it is equally well settled that there is distinction between "material facts" and "particulars". Material facts are primary or basic facts which must be pleaded by the party in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise." 77. As we have already observed earlier, in the present case, 'material facts' of corrupt practice said to have been adopted by the respondent had been set out in the petition with full particulars. It has been expressly stated as to how Mr. Chahal who was a Gazetted Officer of Class I in the Government of Punjab assisted the respondent by doing several acts, as....