KANIMOZHI KARUNANIDHI versus A. SANTHANA KUMAR & ORS on 4 May 2023

798

SUPREME COURT REPORTS

[2023] 4 S.C.R.

A

KANIMOZHI KARUNANIDHI

v.

A. SANTHANA KUMAR & ORS

(Civil Appeal No. 3411 of 2023)

BMAY 04, 2023

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Representation of the People’s Act, 1951 – s.83(1)(a) – Non-compliance of – Consequences of – Held: s.83(1)(a) mandates thatan Election petition shall contain a concise statement of materialCfacts on which the petitioner relies – If material facts are not statedin an Election petition, the same is liable to be dismissed on thatground alone, as the case would be covered by Clause (a) of r.11 ofOr.7 of the CPC – Code of Civil Procedure, 1908 – Or.7, r.11(a).

Representation of the People’s Act, 1951 – ss.100(1)(d)(iv),D83(i)(a) – Respondent no.1 filed Election Petition seekingdeclaration that the election of the appellant-returned candidatefrom No. 36, Thoothukudy Lok Sabha Constituency, in the Lok Sabhaelection was void and liable to be set aside – The ground urged wasthat the appellant did not provide information w.r.t the payment ofEincome tax of her spouse (a foreign citizen as per the appellant) inthe affidavit in Form no.26 – Appellant sought rejection of theelection petition, applications dismissed – Held: Appellant filled inall the columns of Form No.26 by furnishing the information withregard to her Permanent Account Number (PAN) and status of filingof income tax return etc. and of her husband wherever applicable –FIf according to the respondent, the appellant had suppressed thePAN of her spouse and also about the non-payment of income taxof her spouse in the foreign country, it was obligatory on the partof the respondent to state in the Election petition as to what was thePAN of the spouse of the appellant in India which was suppressedGby her and how the other details furnished about her husband inthe said Form No. 26 were incomplete or false – Mere bald andvague allegations without any basis would not be sufficientcompliance of the requirement of stating material facts in the ElectionPetition – There are no material facts stated in the petition constitutingcause of action u/s.100(1)(d)(iv)– Election petition dismissed u/H

Or.VII, r.11(a), CPC r/w s.83(i)(a) – Impugned judgment of the HighCourt set aside – Conduct of Election Rules 1961 – rr. 4, 4A –Constitution of India – Article 324 – Code of Civil Procedure, 1908– Or.7, r.11(a).

Representation of the People’s Act, 1951 – Right to elect, rightto be elected and the right to dispute an election – Nature of –Held: A right to elect is neither a fundamental right nor a commonlaw right – It is purely a statutory right – Similarly, right to be electedand the right to dispute an election are also statutory rights subjectto statutory limitations – An Election petition is not an action atcommon law, nor in equity – It is a special jurisdiction to be exercisedin accordance with the statute creating it – The Election petition isa serious matter, it cannot be treated lightly or in a fanciful mannernor is it given to a person who uses it as a handle for vexatiouspurpose – Constitution of India – Part-XV.

Words & Phrases – “material facts” – What constitutes –Discussed – Representation of the People’s Act, 1951 – s.83(1)(a).

Allowing the appeals, the Court

Conclusion

HELD: 1.1 Section 83(1)(a) of RP Act, 1951 mandates thatan Election petition shall contain a concise statement of materialfacts on which the petitioner relies. If material facts are not statedin an Election petition, the same is liable to be dismissed on thatground alone, as the case would be covered by Clause (a) of Rule11 of Order 7 of the Code. The material facts must be such factsas would afford a basis for the allegations made in the petitionand would constitute the cause of action, that is every fact whichit would be necessary for the plaintiff/petitioner to prove, iftraversed in order to support his right to the judgement of court.Omission of a single material fact would lead to an incompletecause of action and the statement of plaint would become bad.Material facts mean the entire bundle of facts which wouldconstitute a complete cause of action. Material facts would includepositive statement of facts as also positive averment of a negativefact, if necessary. In order to get an election declared as voidunder Section 100(1)(d)(iv) of the RP Act, the Election petitionermust aver that on account of non-compliance with the provisionsof the Constitution or of the Act or any rules or orders made A

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Aunder the Act, the result of the election, in so far as it concernedthe returned candidate, was materially affected. The Electionpetition is a serious matter and it cannot be treated lightly or in afanciful manner nor is it given to a person who uses it as a handlefor vexatious purpose. An Election petition can be summarilydismissed on the omission of a single material fact leading to anBincomplete cause of action, or omission to contain a concisestatement of material facts on which the petitioner relies forestablishing a cause of action, in exercise of the powers underClause (a) of Rule 11 of Order VII CPC read with the mandatoryrequirements enjoined by Section 83 of the RP Act. [Para 28][825-CB-H; 826-A]

1.2 The election petitioner i.e., the respondent has madevery bald and vague allegations without stating the material factsas to how there was non-compliance of any of the provisions ofthe Constitution of India or of the RP Act or of the rules madethereunder. If the averments made in the Election petition areDread in juxtaposition to the information furnished by the appellant-returned candidate in Form No. 26, it clearly emerges that againstthe information sought about the PAN number of the spouse ofthe appellant, it has been stated that “No PAN No.”, “Spouse K.Aravindhan Foreign Citizenship”. Against the information soughtEwith regard to “The financial year for which the last income taxreturn has been filed”, the information supplied by the appellantabout her spouse is “Not applicable”. The appellant has filled inall the columns of Form No. 26 by furnishing the information withregard to her Permanent Account Number and status of filing ofincome tax return etc. and of her husband wherever applicable.FIf according to the respondent-election petitioner, the appellant-returned candidate had suppressed the Permanent AccountNumber of her spouse and also about the non-payment of incometax of her spouse in the foreign country, it was obligatory on thepart of the Election petitioner to state in the Election petition asto what was the Permanent Account Number of the spouse of theGreturned candidate in India which was suppressed by her andhow the other details furnished about her husband in the saidForm No. 26 were incomplete or false. Mere bald and vagueallegations without any basis would not be sufficient complianceof the requirement of stating material facts in the Election Petition.H[Paras 30, 31][826-G-H; 827-A-D]

1.3 It is also significant to note that an affidavit in Form 26along with the nomination paper, is required to be furnished bythe candidate as per Rule 4A of the said Rules read with Section33 of the said Act. The Returning Officer is empowered eitheron the objections made to any nomination or on his own motion,to reject any nomination on the grounds mentioned in Section36(2), including on the ground that there has been a failure tocomply with any of the provisions of Section 33 of the Act.However, at the time of scrutiny of the nomination paper and theaffidavit in the Form 26 furnished by the Appellant-returnedcandidate, neither any objection was raised, nor the ReturningOfficer had found any lapse or non-compliance of Section 33 orRule 4A of the Rules. Assuming that the election petitioner didnot have the opportunity to see the Form No. 26 filled in by theAppellant-returned candidate, when she submitted the same tothe Returning Officer, and assuming that the Returning Officerhad not properly scrutinized the nomination paper of the appellant,and assuming that the election petitioner had a right to questionthe same by filing the Election petition under Section 100(1)(d)(iv)of the said 34 Act, then also there are no material facts stated inthe petition constituting cause of action under Section100(1)(d)(iv) of the RP Act. In absence of material factsconstituting cause of action for filing Election petition underSection 100(1)(d)(iv) of the said Act, the Election petition isrequired to be dismissed under Order VII Rule 11(a) CPC readwith Section 13(1)(a) of the RP Act. Section 83(1)(a) of RP Actmandates that an Election petition shall contain a concisestatement of material facts on which petitioner relies, and whichfacts constitute a cause of action. Such facts would include positivestatement of facts as also positive averment of negative fact.Omission of a singular fact would lead to incomplete cause ofaction. So far as the present petition is concerned, there is noaverment made as to how there was non-compliance withprovisions of the Constitution or of RP Act or of the Rules orOrder made thereunder and as to how such non-compliance hadmaterially affected the result of the election, so as to attract theground under Section 100(1)(d)(iv) of the RP Act, for declaringthe election to be void. The omission to state such vital and basicfacts has rendered the petition liable to be dismissed under Order AB

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AVII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act,1951. Election petition filed by the respondent-election petitioneris dismissed. [Paras 33, 34][827-F-H; 828-A-F]

N.P. Ponnuswami vs. Returning Officer, NamakkalConstituency & Ors. 1952 (1) SCC 94; Jagan Nath vs.BJaswant Singh & Ors. AIR 1954 SC 210 : [1954] SCR892; Bhikji Keshao Joshi & Anr. vs. Brijlal NandlalBiyani & Ors. AIR 1955 SC 610 : [1955] SCR 428;Murarka Radhey Shyam Ram Kumar vs. Roop SinghRathore & Ors. AIR 1964 SC 1545 : [1964] SCR 573– followed.C

Ram Sukh vs. Dinesh Aggarwal 2009 (10) SCC 541 :[2009] 14 SCR 836; Hari Shanker Jain vs. SoniaGandhi 2001 (8) SCC 233 : [2001] 3 Suppl. SCR 38;Samant N. Balkrishna & Anr. vs. George Fernandez &Ors. 1969 (3) SCC 238 : [1969] 3 SCR 603; Union ofDIndia vs. Association for Democratic Reforms & Anr.2002 (5) SCC 294 : [2002] 3 SCR 696; MahadeoraoSukaji Shivankar vs. Ramaratan Bapu & Ors. 2004 (7)SCC 181 : [2004] 3 Suppl. SCR 553; Anil VasudevSalgaonkar vs. Naresh Kushali Shigaonkar 2009 (9)ESCC 310 : [2009] 14 SCR 10 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No.3411 of2023.

From the Judgment and Order dated 19.11.2019 of the High Courtof Judicature at Madras in OA Nos.929 and 930 of 2019.

With

Civil Appeal No.3412 of 2023.

P. Wilson, Sr. Adv., Dr. Joseph Aristotle S, Richardson Wilson,Apoorv Malhotra, Ms. Sapna I Pillai, Ms. Aishwarya Mishra, Ms. PriyaAristotle, Advs. for the Appellant.

S. Makesh, N. I. Ramachandran, L. R. Venkatesan, AnoopPrakash Awasthi, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms.Aparna Singh, Ms. Sakshi Upadhyay, Advs. for the Respondents.

The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

1. Leave granted.

2. The appellant in both the appeals (hereinafter referred to asthe returned candidate)has challenged the legality of the impugnedcommon order dated 19.11.2019 passed by the High Court of Judicatureat Madras in Original Application Nos. 929/2019 and 930/2019 filed bythe appellant in Election Petition No. 3/2019, whereby the High Courthas dismissed both the said applications.

Factual matrix:

3. The factual matrix giving rise to the present appeals are that on19.03.2019, the nominations were invited pursuant to the notificationissued by the Chief Election Commissioner for the elections to the 17[th]Lok Sabha, scheduled to be held on 18.04.2019. The appellant filed hernomination from No. 36-Thoothukudy Lok SabhaConstituency, along withthe affidavit in Form No. 26 as per Rule 4A of the Conduct of ElectionRules 1961 (hereinafter referred to as the said Rules). The scrutiny ofnomination papers was held by the Returning Officer on 27.03.2019.The elections were held on 18.04.2019 as scheduled, and the appellantwas declared elected from the said No. 36 Thoothukudy Lok SabhaConstituency with a margin of 3,47,209 votes on 23.05.2019.

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A4. The Election petitioner/respondent no. 1 herein claiming to be avoter, has filed the Election Petition being no. 3/2019 before the HighCourt under Section 80, 80A, 100(1)(d)(iv) of the Representation of thePeople’s Act, 1951 (hereinafter referred to as the RP Act) seekingdeclaration that the election of the returned candidate, i.e., the appellantherein, from No. 36, Thoothukudy Lok Sabha Constituency, in the LokBSabha election conducted pursuant to the notification of the Chief ElectionCommissioner dated 19.03.2019 was void and liable to be set aside, onthe ground that the information sought by the Election Commission ofIndia in regard to the payment of income tax of her spouse was notprovided by her in the affidavit – Form no.26 submitted along with theCnomination papers, and thus had intentionally suppressed and not disclosedthe same to the electors.5. The precise allegations made in para 5 to 9 of the Electionpetition read as under:

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“5. The petitioner humbly submits that upon perusal of theDnomination paper submitted by the 2nd respondent, the returnedcandidate herein, under Rule 4 of the conduct of election rules1961, after the dissemination of the same to the public under theRepresentation of the People Act, it is noticed manifestly that shehad failed to furnish the details of the payment of the income taxEof her spouse mention in the Tamil language as “THUNAIVAR”namely Aravindan, Citizen of Singapore, in the column requiringto provide the PAN number, the last financial year of filing theIncome Tax Return and the total income shown in the income taxreturn for the past five financial years, for each year in Rupees, inthe affidavit FORM 26, under Part A, No. 4 S. No. 2, by mentioningFin Tamil language “PORUTHATHU” which information is to bemandatory furnished by the returned candidate in adherence tothe information sought by the Election Commission of India inexercise of the statutory powers, conferred under Article 324 ofthe Constitution of India and suppression of the same by theGreturned candidate in non-compliance with the provisions of theconstitution of India, the result of the election is materially affected.

6. The petitioner humbly submits that in S.No. 3 of Part-B in theaffidavit Form 26 the 2nd respondent had provided the informationin regard to the constituency Number, name and State as No. 36,HThoothukudi, Tamilnadu, but whereas in Part A No. 2, she mentioned that her electoral constituency is No. 19 CHEPAUK,Tamil Nadu, exposes the improper submission of nomination form.

7. The petitioner humbly submits that having aggrieved againstthe unconstitutional act of the 2nd respondent the returnedcandidate, inasmuch as of which the electors of the constituencyare unable to have information regarding the income of the spouseof the returned candidate disclosed in the income tax return,consequently as the result is materially affected he is before thisHon’ble Court praying to declare the election of the returnedcandidate, the 2nd respondent herein, from No. 36, ThoothukudiConstituency as void and set aside the same.

8. The petitioner respectfully submits that the nomination paper,the affidavit FORM 26 is without particulars of the payment ofamount of income tax of her spouse (Thunaivar) namely Mr.Arvindan, Citizen of Singapore though the information in regardto the payment of the amount of income tax is sought by theelection commission of India in exercise of their statutory powersunder Article 324 of the Constitution of India in view of providinginformation to the public under the Representation of People Act.Besides, it is pertinent to state here that the income from theforeign countries is subject to income tax under the SingaporeIncome Tax Act and each income tax payer is provided the IncomeTax Reference Number by the authority.

9. The petitioner humbly submits that the suppression ofinformation by the returned candidate the 2nd respondent hereinin regard to the payment of income tax of her spouse herein inregard to the payment of income tax of her spouse (Thunaivar)debar the electors of the constituency to get complete informationof the payment of income tax to the income tax authority inSingapore and lead to filing false affidavit in on adherence of therules.”

6. In the said Election petition, the appellant/returned candidatehad filed OA No. 929/2019 praying to strike off paragraphs 5 to 17 ofthe Election petition and had filed OA No. 930/2019 praying to reject theElection petition in limine on the ground inter alia that the avermentsand allegations contained in the Election petition were wholly vague andbereft of material facts, and therefore did not meet with the requirements AB

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Aof Section 81, 83, 86 and 100 of the said Act. It was also averred that theparagraph nos. 5 to 17 of the Election petition were bereft of materialfacts and did not disclose any cause of action. The High Court vide theimpugned common order dismissed both the Original Applications filedby the appellant/returned candidate.

BSubmissions by the Learned Counsels for the Parties:7. The learned Senior Advocate Mr. P. Wilson for the appellantmade the following submissions:

(i) Section 83(1)(a) the said Act makes it mandatory for allelection petitions to contain a concise statement of materialCfacts on which petitioner relies, however in the present casethe respondent-election petitioner has failed to plead thematerial facts and therefore the Election petition is liable tobe dismissed in limine.

(ii) Placing reliance on the decision of this Court in case ofDRam Sukh vs. Dinesh Aggarwal[1], and in case of HariShanker Jain vs. Sonia Gandhi[2], he submitted that thematerial facts would include positive statement of factsasalso positive averment of a negative fact, if necessary, andthat in absence thereof, the Election petition is liable to beEdismissed on that ground alone.

(iii) Relying upon Samant N. Balkrishna &Anr. vs. GeorgeFernandez &Ors.[3], he submitted that failure to plead evena single material fact leads to an incomplete cause of actionand the statement of claim becomes bad.

F(iv)In the instant case, though the respondent-election petitionerhas alleged that the appellant has suppressed facts in theForm No. 26 Affidavit, he has failed to state as to whichfacts were suppressed, and how there was non-complianceof the provisions of the Constitution or of the Act or therules made thereunder, which had materially affected theGresult of the election.

(v) The entire Election petition filed by the respondent is basedon vague and bald assumptions, presumptions and 1 2009 (10) SCC 5412 2001 (8) SCC 233H3 1969 (3) SCC 238

conjectures without stating the material facts moreparticularly the material facts in support of the groundcontained in Section 100(1)(d)(iv) of the said Act.

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(vi) Lastly,he submitted that though the candidates are requiredto disclose their status of Income tax, of the assets andliabilities as well as their spouses’ assets and liabilities, ifthe columns in this regard are not applicable in the factsituation, it could not amount to suppression of facts.

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8. The learned Advocate Mr. Mukesh S. for respondent no. 1made the following submissions:

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(i) The appellant has violated the law laid down by this Courtin Union of India vs. Association for Democratic Reforms&Anr.[4], wherein the Court had directed the ElectionCommission to get the details of assets and liabilities of thecandidates and their family members, without differentiatingthe status of citizenship.

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(ii) The appellant, in response to the query regarding incometax dues of her spouse, had mentioned “NO”.The appellanthad failed to disclose the status of filing of income tax returnof her spouse in foreign country, as required to be disclosedin the Form No. 26. The appellant had simply stated in thesaid Form that her spouse was a foreign citizen withoutdisclosing the status of filing of income tax return and theincome tax reference number provided in Singapore.

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(iii) The appellant was bound to disclose the details of status offiling of income tax return by her spouse in the foreigncountry and non-disclosure of the same tantamounted tothe suppression of facts and non-compliance of the statutoryrules framed under the said Act.

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(iv) By not disclosing the financial status of her family,theappellant had deprived the opportunity to the voters toGdecide about the casting of votes.

(v) Lack of transparency andnon-disclosure of facts in the FormNo. 26 had materially affected the result of the election.

4 2002 (5) SCC 294

ARelevant Provisions of the Constitution of India and of theR.P. Act, 1951:

9. In order to appreciate the rival contentions raised by the learnedcounsel for the parties, it would be beneficial to refer to some of therelevant provisions contained in the Constitution of India as also the R.P.BAct, 1951.

10. Part -XV of the Constitution of India deals with the Elections.The superintendence, direction and control of the preparation of theelectoral rolls for, and the conduct of all elections to the Parliament andto the legislature of every State and of elections to the offices of PresidentCand Vice-President held under the Constitution have been vested in theElection Commission under Article 324 of the Constitution of India. Article325 provides that there shall be one general electoral roll foreveryterritorial constituency and that no person shall be ineligible forinclusion in such rolls on the grounds only of religion, race, caste, sex orany of them. Article 326 provides that elections to the House of peopleDand to the legislative assemblies of States shall be on the basis of adultfranchise. Article 327 enables Parliament to make laws with respect toall matters relating to elections to either House of Parliament or to theHouses of the legislature of a State. Article 328 enables the legislatureof a State, if Parliament has not made such legislation, to make lawsEwith respect to all matters relating to elections to the Houses of legislatureof the State. Article 329 bars interference by courts in electoral mattersand clause(b) in particular provides that no election to the either Houseof Parliament or to the House or either House of the legislature of aState shall be called in question except by an election petition presentedto such authority and in such manner as may be provided for by or underFany law made by the appropriate legislature.

11. So far as the R.P Act, 1951, is concerned, its object as isreflected in its short title is to provide for the conduct of elections of theHouses of Parliament and to the House or Houses of the legislature ofeach State, the qualifications and the disqualifications for membershipGof those Houses, the corrupt practices and other offencesat or inconnection with such elections and the decision of doubts and disputesarising out of or in connection with such elections. Part-VI of the R.P.Act, 1951 deals with the disputes regarding Elections, and Chapter IIthereof deals with the presentation of the Election petitionsto the HighHCourt. Section 80 thereof states that no election shall be called in question KANIMOZHI KARUNANIDHI v. A. SANTHANA KUMAR[BELA M. TRIVEDI, J.]

except by an election petition presented in accordance with the provisionsof Part-VI.

12. Section 80A confers jurisdiction on the High Court to try electionpetitions. Section 81 deals with the presentation of petitions which readsas under:

“Section 81. Presentation of Petitions- (1) An election petitioncalling in question any election may be presented on one or moreof the grounds specified in [sub-section (1)] of Section 100 andSection 101 to the High Court by any candidate at such electionor any elector [within forty-five days from, but not earlier thanthe date of election of the returned candidate or if there are morethan one returned candidate at the election and dates of theirelection are different, the later of those two dates].

Explanation. —In this sub-section, “elector” means a person whowas entitled to vote at the election to which the election petitionrelates, whether he has voted at such election or not.

(2) [***]

[(3) Every election petition shall be accompanied by as manycopies thereof as there are respondents mentioned in thepetitionand every such copy shall be attested by the petitionerunder his own signature to be a true copy of the petition.]

13. Section 82 mandates as to who shall be the parties to theElection petition. Section 83 pertains to the contents of the petition, whichreads as under:-

83. Contents of petition- (1) An election petition—

(a) shall contain a concise statement of the material facts on whichthe petitioner relies; (b) shall set forth full particulars of any corrupt practice that thepetitioner alleges, including as full a statement as possible of thenames of the parties alleged to have committed such corruptpractice and the date and place of the commission of each suchpractice; and

(c) shall be signed by the petitioner and verified in the manner laiddown in the Code of Civil Procedure, 1908 (5 of 1908) for theverification of pleadings:

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A[Provided that where the petitioner alleges any corrupt practice,the petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corrupt practiceand the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signedBby the petitioner and verified in the same manner as the petition.]

14. As per Section 86, the High Court is empowered to dismiss anelection petition which does not comply with the provisions of Section 81or Section 82 or Section 117. Section 87 deals with the procedure to befollowed by the High Court which reads as under:

C“87. Procedure before the High Court.—

(1) Subject to the provisions of this Act and of any rules madethereunder, every election petition shall be tried by the High Court,as nearly as may be, in accordance with the procedure applicableunder the Code of Civil Procedure, 1908 (5 of 1908) to the trial ofDsuits:

Provided that the High Court shall have the discretion to refuse,for reasons to be recorded in writing, to examine any witness orwitnesses if it is of the opinion that the evidence of such witnessor witnesses is not material for the decision of the petition or thatEthe party tendering such witness or witnesses is doing so onfrivolous 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 allrespects to the trial of an election petition.”F15. The grounds on which the High Court could declare the electionof the returned candidate to be void are enumerated in Section 100 whichreads as under:-

100. Grounds for declaring election to be void. - (1) Subjectto the provisions of sub-section (2) if the High Court is of opinion- G

(a) —

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(d) that the result of the election, in so far as it concerns a returnedcandidate, has been materially affected-

(i) —

(ii) —

(iii) —

(iv) by any non-compliance with the provisions of the Constitutionor of this Act or of any rules or orders made under this Act, theHigh Court shall declare the election of the returned candidate tobe void.”

16. In the instant case, the respondent-election petitioner haschallenged the election of the appellant on the ground that the result ofthe election, insofar as it concerned the appellant, was materially affectedby non-compliance with Article 324 of the Constitution and by non-compliance with Rule-4Aof the said Rules read with Section 33 of theAct. It may be noted that Section 33 of the Act pertains to the presentationof nomination paper and the requirements for a valid nomination. Section36 pertains to the scrutiny of nominations by the Returning Officer. Sub-section(2) thereof empowers the Returning Officer, either on theobjections made to any nomination or on his own motion, to reject anynomination on the grounds mentioned therein. One of the grounds toreject the nomination is, when there has been failure to comply with anyof the provisions of Section 33. Sub-section(4) of Section 36 states thatthe Returning Officer shall not reject any nomination paper on the groundof any defect which is not of a substantial character.

17. Part-II of the Conduct of Election Rules, 1961 deals with theGeneral Provisions. Rule-4 and Rule-4A which pertain to the submissionof nomination paper and the Form of affidavit to be filed at the time ofdelivering nomination paper read as under:- “4. Nomination paper- Every nomination paper presented undersub-section (i) of section 33 shall be completed in such one of theForms 2A to 2E as may be appropriate:

Provided that a failure to complete or defect in completing, thedeclaration as to symbols in a nomination paper in Form 2A orForm 2B shall not be deemed to be a defect of a substantialcharacter within the meaning of sub-section (4) of section 36.

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A4A. Form of affidavit to be filed at the time of deliveringnomination paper- The candidate or his proposer, as the casemay be, shall, at the time of delivering to the returning officer thenomination paper under sub-section (1) of section 33 of the Act,also deliver to him an affidavit sworn by the candidate before aMagistrate of the first class or a Notary in Form 26.”

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Legal position:

18. The scheme of the Constitutional and statutory provisionscontained in the R.P. Act in relation to the nature of the right to elect, theright to be elected and the right to dispute an election have been explainedand interpreted by various Constitutional Benches since 1952. To cite aCfew are N.P. Ponnuswami vs. Returning Officer, NamakkalConstituency & Ors.[5], in Jagan Nath vs. Jaswant Singh &Ors.[6], inBhikji Keshao Joshi &Anr. vs. Brijlal Nandlal Biyani &Ors.[7], inMurarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore&Ors.[8] etc.D19. What has been gleaned from the said authorities may be

19. What has been gleaned from the said authorities may besummed up by stating that a right to elect, though fundamental it is todemocracy, is neither a fundamental right nor a common law right. It ispurely a statutory right. Similarly, right to be elected and the right todispute an election are also statutory rights. Since they are statutorycreations, they are subject to statutory limitations. An Election petition isEnot an action at common law, nor in equity.It is a special jurisdiction to beexercised in accordance with the statute creating it. The concept familiarto common law and equity must remain strangers to election law unlessstatutorily embodied. Thus, the entire election process commencing fromthe issuance from the notification calling upon a constituency to elect aFmember or members right upto the final resolution of the dispute,concerning the election is regulated by the Representation of PeopleAct 1951. The said R.P. Act therefore has been held to be a completeand self-contained code within which must be found any rights claimedin relation to an election dispute.

20. In a very interesting and important decision in case of Unionof India v/s Association for Democratic Reforms and Another[9], a G

5 1952 (1) SCC 946 AIR 1954 SC 2107 AIR 1955 SC 6108 AIR 1964 SC 1545H9 (2002)5 SCC 294

KANIMOZHI KARUNANIDHI v. A. SANTHANA KUMAR[BELA M. TRIVEDI, J.]

three- judge Bench of this Court raising a question- in a nation weddedto republican and democratic form of government, whether before castingvotes, the voters have a right to know relevant particulars of theircandidates contesting election to the Parliament or to the legislature ofStates, deliberated on the powers of the Election Commission underArticle 324 of the Constitution, and observed as under:- “46. To sum up the legal and constitutional position which emergesfrom the aforesaid discussion, it can be stated that:

1. The jurisdiction of the Election Commission is wide enough toinclude all powers necessary for smooth conduct of elections andthe word “elections” is used in a wide sense to include the entireprocess of election which consists of several stages and embracesmany steps.

2. The limitation on plenary character of power is when Parliamentor State Legislature has made a valid law relating to or inconnection with elections, the Commission is required to act inconformity with the said provisions. In case where law is silent,Article 324 is a reservoir of power to act for the avowed purposeof having free and fair election. The Constitution has taken careof leaving scope for exercise of residuary power by theCommission in its own right as a creature of the Constitution inthe infinite variety of situations that may emerge from time totime in a large democracy, as every contingency could not beforeseen or anticipated by the enacted laws or the rules. By issuingnecessary directions, the Commission can fill the vacuum till thereis legislation on the subject. In Kanhiya Lal Omar case [(1985) 4SCC 628] the Court construed the expression “superintendence,direction and control” in Article 324(1) and held that a directionmay mean an order issued to a particular individual or a preceptwhich many may have to follow and it may be a specific or ageneral order and such phrase should be construed liberallyempowering the Election Commission to issue such orders.

3. ….

4. To maintain the purity of elections and in particular to bringtransparency in the process of election, the Commission can askthe candidates about the expenditure incurred by the political partiesand this transparency in the process of election would include A

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Atransparency of a candidate who seeks election or re-election. Ina democracy, the electoral process has a strategic role. The littleman of this country would have basic elementary right to knowfull particulars of a candidate who is to represent him in Parliamentwhere laws to bind his liberty and property may be enacted.”

B21. It is also pertinent to note that the insertion of Rule-4A andForm-26 appended to the said Rules is also culmination of the saidobservations made this Court in the aforesaid case, which require thecandidate to disclose the information and particulars in the form of affidavitto be submitted along with the nomination paper.

C22. The respondent-Election petitioner in this case has challengedelection of the appellant-returned candidate under Section 100(1)(d)(iv)on the ground of non-compliance of the said Rule-4A and the Form-26.However, the appellant had filed the applications seeking dismissal ofthe Election petition in limine, for the non-compliance of the provisionsof Section 83(1)(a) of the said Act, read with Order VII, Rule 11 ofDCPC.

23. The law so far developed and settled by this Court with regardto the non-compliance of the requirement of Section 83(1)(a) of the EPAct, namely-”an Election petition must contain a concise statement ofmaterial facts on which the petitioner relies”, is that such non-complianceEof Section 83(1)(a) read with Order VII, Rule 11, CPC, may entaildismissal of the Election Petition right at the threshold. “Material facts”are facts which if established would give the petitioner the relief askedfor. The test required to be answered is whether the court could havegiven a direct verdict in favour of the election petitioner in case theFreturned candidate had not appeared to oppose the Election petition onthe basis of the facts pleaded in the petition. They must be such facts aswould afford a basis for the allegations made in the petition and wouldconstitute the cause of action as understood in the Code of Civil Procedure1908. Material facts would include positive statement of facts as alsopositive statement of a negative fact.G

24. A Three-Judge Bench in Hari Shanker Jain vs. Sonia Gandhi(supra) had an occasion to deal with Section 83(1)(a) of the RP Act andthe Court dismissed the Election petition holding that the bald and vagueaverments made in the election petitions do not satisfy the requirementsof pleading “material facts” within the meaning of Section 83(1)(a) ofH

the RP Act read with the requirements of Order VII Rule 11 CPC. Itwas observed in para 23 and 24 as under: -

“23. Section 83(1)(a) of RPA, 1951 mandates that an electionpetition shall contain a concise statement of the material facts onwhich the petitioner relies. By a series of decisions of this Court,it is well settled that the material facts required to be stated arethose facts which can be considered as materials supporting theallegations made. In other words, they must be such facts as wouldafford a basis for the allegations made in the petition and wouldconstitute the cause of action as understood in the Code of CivilProcedure, 1908. The expression “cause of action” has beencompendiously defined to mean every fact which it would benecessary for the plaintiff to prove, if traversed, in order to supporthis right to the judgment of court. Omission of a single materialfact leads to an incomplete cause of action and the statement ofclaim becomes bad. The function of the party is to present as fulla picture of the cause of action with such further information indetail as to make the opposite party understand the case he willhave to meet. (See Samant N. Balkrishna v. GeorgeFernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603] , JitendraBahadur Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merelyquoting the words of the section like chanting of a mantra doesnot amount to stating material facts. Material facts would includepositive statement of facts as also positive averment of a negativefact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999)3 SCC 737] this Court has held, on a conspectus of a series ofdecisions of this Court, that material facts are such preliminaryfacts which must be proved at the trial by a party to establishexistence of a cause of action. Failure to plead “material facts” isfatal to the election petition and no amendment of the pleadings ispermissible to introduce such material facts after the time-limitprescribed for filing the election petition.

24. It is the duty of the court to examine the petition irrespectiveof any written statement or denial and reject the petition if it doesnot disclose a cause of action. To enable a court to reject a plainton the ground that it does not disclose a cause of action, it shouldlook at the plaint and nothing else. Courts have always frownedupon vague pleadings which leave a wide scope to adduce any AB

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Aevidence. No amount of evidence can cure basic defect in thepleadings.”

25. In case of Mahadeorao Sukaji Shivankar vs. RamaratanBapu & Ors.[10], a Three-Judge Bench of this Court again had anoccasionto deal with the issues as to what would constitute “materialBfacts” and what would be the consequences of not stating the “materialfacts” in the Election petition, as contemplated in Section 83(1)(a) of theRP Act, and the Court observed as under:

“6. Now, it is no doubt true that all material facts have to be setout in an election petition. If material facts are not stated in aplaint or a petition, the same is liable to be dismissed on that groundCalone as the case would be covered by clause (a) of Rule 11 ofOrder 7 of the Code. The question, however, is as to whether thepetitioner had set out material facts in the election petition. Theexpression “material facts” has neither been defined in the Actnor in the Code. It may be stated that the material facts are thoseDfacts upon which a party relies for his claim or defence. In otherwords, material facts are facts upon which the plaintiff’s causeof action or the defendant’s defence depends. What particularscould be said to be material facts would depend upon the facts ofeach case and no rule of universal application can be laid down. Itis, however, absolutely essential that all basic and primary factsEwhich must be proved at the trial by the party to establish existenceof cause of action or defence are material facts and must bestated in the pleading of the party.

7. But, it is equally well settled that there is distinction between“material facts” and “particulars”. Material facts are primary orFbasic facts which must be pleaded by the petitioner in support ofthe case set up by him either to prove his cause of action ordefence. Particulars, on the other hand, are details in support ofmaterial facts pleaded by the party. They amplify, refine andembellish material facts by giving finishing touch to the basiccontours of a picture already drawn so as to make it full, moreGclear and more informative. Particulars ensure conduct of fairtrial and would not take the opposite party by surprise.”

26. In Anil Vasudev Salgaonkar vs. Naresh KushaliShigaonkar[11], this Court has discussed number of earlier decisions on10 2004 (7) SCC 181H11 2009 (9) SCC 310

the issue as to when the Election petition could be dismissed summarilyif it does not furnish the cause of action in exercise of powers under theCode of Civil Procedure read with Section 83 of the R.P. Act.

“50. The position is well settled that an election petition can besummarily dismissed if it does not furnish the cause of action inexercise of the power under the Code of Civil Procedure.Appropriate orders in exercise of powers under the Code can bepassed if the mandatory requirements enjoined by Section 83 ofthe Act to incorporate the material facts in the election petitionare not complied with.

51. This Court in Samant N. Balkrishna case [(1969) 3 SCC238] has expressed itself in no uncertain terms that the omissionof a single material fact would lead to an incomplete cause ofaction and that an election petition without the material facts relatingto a corrupt practice is not an election petition at all. In UdhavSingh v. Madhav Rao Scindia [(1977) 1 SCC 511] the law hasbeen enunciated that all the primary facts which must be provedby a party to establish a cause of action or his defence are materialfacts. In the context of a charge of corrupt practice it would meanthat the basic facts which constitute the ingredients of the particularcorrupt practice alleged by the petitioner must be specified in orderto succeed on the charge. Whether in an election petition aparticular fact is material or not and as such required to be pleadedis dependent on the nature of the charge levelled and thecircumstances of the case. All the facts which are essential toclothe the petition with complete cause of action must be pleadedand failure to plead even a single material fact would amount todisobedience of the mandate of Section 83(1)(a). An electionpetition therefore can be and must be dismissed if it suffers fromany such vice. The first ground of challenge must therefore fail.

52. In V. Narayanaswamy v. C.P. Thirunavukkarasu [(2000) 2SCC 294] this Court reiterated the legal position that an electionpetition is liable to be dismissed if it lacks in material facts. In L.R.Shivaramagowda v. T.M. Chandrashekar [(1999) 1 SCC 666]this Court again considered the importance of pleadings in anelection petition alleging corrupt practice falling within the scopeof Section 123 of the Act and observed as under: (SCC p. 677,para 11)

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“11. This Court has repeatedly stressed the importance ofpleadings in an election petition and pointed out the differencebetween ‘material facts’ and ‘material particulars’. While thefailure to plead material facts is fatal to the election petitionand no amendment of the pleading could be allowed to introducesuch material facts after the time-limit prescribed for filing theelection petition, the absence of material particulars can becured at a later stage by an appropriate amendment.”

53. In Udhav Singh case [(1977) 1 SCC 511] this Court observedas under: (SCC pp. 522-23, para 41)

“41. Like the Code of Civil Procedure, this section alsoenvisages a distinction between ‘material facts’ and‘material particulars’. Clause (a) of sub-section (1)corresponds to Order 6 Rule 2, while clause (b) is analogousto Order 6 Rules 4 and 6 of the Code. The distinction between‘material facts’ and ‘material particulars’ is important becausedifferent consequences may flow from a deficiency of suchfacts or particulars in the pleading. Failure to plead even asingle material fact leads to an incomplete cause of actionand incomplete allegations of such a charge are liable to bestruck off under Order 6 Rule 16, Code of Civil Procedure. Ifthe petition is based solely on those allegations which sufferfrom lack of material facts, the petition is liable to be summarilyrejected for want of a cause of action. In the case of a petitionsuffering from a deficiency of material particulars, the courthas a discretion to allow the petitioner to supply the requiredparticulars even after the expiry of limitation.”

54. In H.D. Revanna case [(1999) 2 SCC 217] the appeal wasfiled by the candidate who had succeeded in the election andwhose application for dismissal of the election petition in liminewas rejected by the High Court. This Court noticed that it hasbeen laid down by this Court that non-compliance with theprovisions of Section 83 may lead to dismissal of the petition if thematter falls within the scope of Order 6 Rule 16 and Order 7 Rule11 of the Code of Civil Procedure. In Harmohinder SinghPradhan v. Ranjeet Singh Talwandi [(2005) 5 SCC 46] this Courtobserved thus: (SCC p. 51, para 14)

“14. Necessary averment of facts constituting an appeal onthe ground of ‘his religion’ to vote or to refrain from votingwould be material facts within the meaning of clause (a) ofsub-section (1) of Section 83 of the Act. If such material factsare missing, they cannot be supplied later on, after the expiryof period of limitation for filing the election petition and theplea being deficient, can be directed to be struck down underOrder 6 Rule 16 of the Code of Civil Procedure, 1908 and ifsuch plea be the sole ground of filing an election petition, thepetition itself can be rejected as not disclosing a cause of actionunder clause (a) of Rule 11, Order 7 of the Code.”

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 primaryor basic facts which must be pleaded by the plaintiff or by thedefendant in support of the case set up by him either to provehis 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 givingdistinctive touch to the basic contours of a picture alreadydrawn so as to make it full, more clear and more informative.‘Particulars’ thus ensure conduct of fair trial and would nottake the opposite party by surprise.

52. All ‘material facts’ must be pleaded by the party in supportof the case set up by him. Since the object and purpose is toenable the opposite party to know the case he has to meetwith, in the absence of pleading, a party cannot be allowed tolead evidence. Failure to state even a single material fact, hence,will entail dismissal of the suit or petition. Particulars, on theother hand, are the details of the case which is in the nature ofevidence a party would be leading at the time of trial.”

56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7 SCC 604]this Court observed as under: (SCC p. 612, para 20)

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“20. The election petition is a serious matter and it cannot betreated lightly or in a fanciful manner nor is it given to a personwho uses this as a handle for vexatious purpose.”

57. It is settled legal position that all “material facts” must bepleaded by the party in support of the case set up by him withinthe period of limitation. Since the object and purpose is to enablethe opposite party to know the case he has to meet with, in theabsence of pleading, a party cannot be allowed to lead evidence.Failure to state even a single material fact will entail dismissal ofthe election petition. The election petition must contain a concisestatement of “material facts” on which the petitioner relies.

58. There is no definition of “material facts” either in theRepresentation of the People Act, 1951 nor in the Code of CivilProcedure. In a series of judgments, this Court has laid down thatall facts necessary to formulate a complete cause of action shouldbe termed as “material facts”. All basic and primary facts whichmust be proved by a party to establish the existence of cause ofaction or defence are material facts. “Material facts” in otherwords mean the entire bundle of facts which would constitute acomplete cause of action. This Court in Harkirat Singhcase [(2005) 13 SCC 511] tried to give various meanings of“material facts”. The relevant para 48 of the said judgment isreproduced as under: (SCC pp. 526-27)

“48. The expression ‘material facts’ has neither been definedin the Act nor in the Code. According to the dictionary meaning,‘material’ means ‘fundamental’, ‘vital’, ‘basic’, ‘cardinal’,‘central’, ‘crucial’, ‘decisive’, ‘essential’, ‘pivotal’,‘indispensable’, ‘elementary’ or ‘primary’. [Burton’s LegalThesaurus (3rd Edn.), p. 349.] The phrase ‘material facts’,therefore, may be said to be those facts upon which a partyrelies for its claim or defence. In other words, ‘material facts’are facts upon which the plaintiff’s cause of action or thedefendant’s defence depends. What particulars could be said to be ‘material facts’ would depend upon the facts of eachcase and no rule of universal application can be laid down. Itis, however, absolutely essential that all basic and primary factswhich must be proved at the trial by the party to establish theexistence of a cause of action or defence are material factsand must be stated in the pleading by the party.”

27. In Ram Sukh vs. Dinesh Aggarwal(supra), this Court againwhile examining the maintainability of Election petition filed under Section100(1)(d)(iv) of the RP Act,elaborately considered the earlier decisionsand observed that it was necessary for the election petitioner to averspecifically in what manner the result of the election in so far as itconcerned the returned candidate was materially affected due to omissionon the part of the Returning Officer. The Court in the said case havingfound that such averments being missing in the Election petition, upheldthe judgment of the High Court/Election Tribunal rejecting the Electionpetition at the threshold. The Court observed in para 14 to 21 as under:

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“14. The requirement in an election petition as to the statementof material facts and the consequences of lack of such disclosurewith reference to Sections 81, 83 and 86 of the Act came up forconsideration before a three-Judge Bench of this Court in SamantN. Balkrishna v. George Fernandez [(1969) 3 SCC 238].Speaking for the three-Judge Bench, M. Hidayatullah, C.J., interalia, laid down that:

(i) Section 83 of the Act is mandatory and requires first a concisestatement of material facts and then the fullest possible particulars;

(ii) omission of even a single material fact leads to an incompletecause of action and statement of claim becomes bad;

(iii) the function of particulars is to present in full a picture of thecause of action and to make the opposite party understand thecase he will have to meet;

(iv) material facts and particulars are distinct matters—materialfacts will mention statements of fact and particulars will set outthe names of persons with date, time and place; and

(v) in stating the material facts it will not do merely to quote thewords of the section because then the efficacy of the materialfacts will be lost.

15. At this juncture, in order to appreciate the real object andpurport of the phrase “material facts”, particularly with referenceto election law, it would be appropriate to notice the distinctionbetween the phrases “material facts” as appearing in clause (a)and “particulars” as appearing in clause (b) of sub-section (1) of A

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Section 83. As stated above, “material facts” are primary or basicfacts which have to be pleaded by the petitioner to prove his causeof 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 materialfacts by giving distinctive touch to the basic contours of a picturealready drawn so as to make it full, more clear and moreinformative. Unlike “material facts” which provide the basicfoundation on which the entire edifice of the election petition isbuilt, “particulars” are to be stated to ensure that the oppositeparty is not taken by surprise.

16. The distinction between “material facts” and “particulars”and their requirement in an election petition was succinctly broughtout by this Court in Virender Nath Gautam v. SatpalSingh [(2007) 3 SCC 617] wherein C.K. Thakker, J., stated thus:(SCC pp. 631-32, para 50)

“50. There is distinction between facta probanda (the factsrequired to be proved i.e. material facts) and facta probantia (thefacts by means of which they are proved i.e. particulars orevidence). It is settled law that pleadings must contain only factaprobanda and not facta probantia. The material facts on whichthe party relies for his claim are called factap robanda and theymust be stated in the pleadings. But the facts or facts by meansof which facta probanda (material facts) are proved and whichare in the nature of facta probantia (particulars or evidence) neednot be set out in the pleadings. They are not facts in issue, butonly relevant facts required to be proved at the trial in order toestablish the fact in issue.”

17. Now, before examining the rival submissions in the light ofthe aforestated legal position, it would be expedient to deal withanother submission of the learned counsel for the appellant thatthe High Court should not have exercised its power either underOrder 6 Rule 16 or Order 7 Rule 11 of the Code to reject theelection petition at the threshold. The argument is twofold viz.:

(i) that even if the election petition was liable to be dismissedultimately, it should have been dismissed only after affording anopportunity to the election petitioner to adduce evidence in supportof his allegation in the petition, and

(ii) since Section 83 does not find a place in Section 86 of the Act,rejection of the petition at the threshold would amount to readinginto sub-section (1) of Section 86 an additional ground.

In our opinion, both the contentions are misconceived anduntenable.

18. Undoubtedly, by virtue of Section 87 of the Act, the provisionsof the Code apply to the trial of an election petition and, therefore,in the absence of anything to the contrary in the Act, the courttrying an election petition can act in exercise of its power underthe Code, including Order 6 Rule 16 and Order 7 Rule 11 of theCode. The object of both the provisions is to ensure thatmeaningless litigation, which is otherwise bound to prove abortive,should not be permitted to occupy the judicial time of the courts.If that is so in matters pertaining to ordinary civil litigation, it mustapply with greater vigour in election matters where the pendencyof an election petition is likely to inhibit the elected representativeof the people in the discharge of his public duties for which theelectorate have reposed confidence in him. The submission,therefore, must fail.

19. Coming to the second limb of the argument viz. absence ofSection 83 in Section 86 of the Act, which specifically providesfor dismissal of an election petition which does not comply withcertain provisions of the Act, in our view, the issue is no longer resintegra. A similar plea was negatived by a three-Judge Bench ofthis Court in Hardwari Lal v. Kanwal Singh [(1972) 1 SCC 214], wherein speaking for the Bench, A.N. Ray, J. (as His Lordshipthen was) said: (SCC p. 221, para 23)

“23. Counsel on behalf of the respondent submitted that anelection petition could not be dismissed by reason of want ofmaterial facts because Section 86 of the Act conferred power onthe High Court to dismiss the election petition which did not complywith the provisions of Section 81, or Section 82 or Section 117 ofthe Act. It was emphasised that Section 83 did not find place inSection 86. Under Section 87 of the Act every election petitionshall be tried by the High Court as nearly as may be in accordancewith the procedure applicable under the Code of Civil Procedure,1908, to the trial of suits. A suit which does not furnish cause ofaction can be dismissed.”

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A20. The issue was again dealt with by this Court in AzharHussain v. Rajiv Gandhi [1986 Supp SCC 315] . Referring toearlier pronouncements of this Court in Samant N.Balkrishna [(1969) 3 SCC 238] and Udhav Singh v. MadhavRao Scindia [(1977) 1 SCC 511] wherein it was observed thatthe omission of a single material fact would lead to incompleteBcause of action and that an election petition without the materialfacts is not an election petition at all, the Bench in Azhar Hussaincase [1986 Supp SCC 315] held that all the facts which areessential to clothe the petition with complete cause of action mustbe pleaded and omission of even a single material fact wouldCamount to disobedience of the mandate of Section 83(1)(a) of theAct and an election petition can be and must be dismissed if itsuffers from any such vice.

21. We may now advert to the facts at hand to examine whetherthe election petition suffered from the vice of non-disclosure ofDmaterial facts as stipulated in Section 83(1)(a) of the Act. Asalready stated the case of the election petitioner is confined to thealleged violation of Section 100(1)(d)(iv). For the sake of readyreference, the said provision is extracted below:

“100. Grounds for declaring election to be void.—

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(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 returnedFcandidate, has been materially affected—

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(iv) by any non-compliance with the provisions of the Constitutionor of this Act or of any rules or orders made under this Act, Gthe High Court shall declare the election of the returned candidateto be void.”

It is plain that in order to get an election declared as void underthe said provision, the election petitioner must aver that on accountof non-compliance with the provisions of the Constitution or ofHthis Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, wasmaterially affected.”

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28. The legal position enunciated in afore-stated cases may besummed up as under:-

i.Section 83(1)(a) of RP Act, 1951 mandates that an ElectionBpetition shall contain a concise statement of material factson which the petitioner relies. If material facts are not statedin an Election petition, the same is liable to be dismissed onthat ground alone, as the case would be covered by Clause(a) of Rule 11 of Order 7 of the Code.

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ii.The material facts must be such facts as would afford abasis for the allegations made in the petition and wouldconstitute the cause of action, that is every fact which itwould be necessary for the plaintiff/petitioner to prove, iftraversed in order to support his right to the judgement ofcourt. Omission of a single material fact would lead to anincomplete cause of action and the statement of plaint wouldbecome bad.

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iii.Material facts mean the entire bundle of facts which wouldconstitute a complete cause of action. Material facts wouldinclude positive statement of facts as also positive avermentof a negative fact, if necessary.

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iv.In order to get an election declared as void underSection100(1)(d)(iv) of the RP Act, the Election petitioner mustaver that on account of non-compliance with the provisionsof the Constitution or of the Act or any rules or orders madeunder the Act, the result of the election, in so far as itconcerned the returned candidate, was materially affected.

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v.The Election petition is a serious matter and it cannot betreated lightly or in a fanciful manner nor is it given to aperson who uses it as a handle for vexatious purpose.

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under Clause (a) of Rule 11 of Order VII CPC read withthe mandatory requirements enjoined by Section 83 of theRP Act.

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Conclusion:

29. In the light of the afore-stated legal position, let us see whetherBthe respondent/election petitioner had complied with the requirementsof Section 83(1)(a) of the RP Act, by stating “material facts” in theElection petition, constituting cause of action and the ground ascontemplated in Section 100(1)(d)(iv) of the RP Act, for declaring theelection of the Appellant-returned candidate to be void. The bone ofCcontention raised by the learned counsel appearing for the respondent-election petitioner is that the Election Commission of India had called forthe information prescribing the Form 26 in regard to status of filing ofincome tax return of candidates and their family members by exercisingpowers under Article 324 of the Constitution of India and in that thepetitioner had provided information that her spouse was working asDconsultant at foreign country and earning salary against the columnNo.8,Serial No.9(b) and 9A(b), respectively under Part A of Form 26.Besides,she had mentioned “No” to the query regarding Income tax dues of herspouse, (mentioned as “Ethumilai” in Tamil language).She had furtherstatedthat her spouse had bank accounts in Singapore with deposit ofEdollars against column No.7 Serial No.(ii) of column in Part A of Form26 but had failed to disclose the status of filing income tax return of herspouse in the foreign country. He therefore submitted that these materialfacts which have already been stated in the Election petition, weresufficient to constitute cause of action for filing Election petition underSection 100(1)(d)(iv) of the RP Act.F

30. It may be noted the precise allegations made by the respondent-election petitioner in para 5 to 9 of his Election petition have alreadybeen reproduced hereinbefore, from which it clearly transpires that theelection petitioner i.e., the respondent has made very bald and vagueallegations without stating the material facts as to how there was non-Gcompliance of any of the provisions of the Constitution of India or of theRP Act or of the rules made thereunder. If the averments made in theElection petition are read in juxtaposition to the information furnished bythe appellant-returned candidate in Form No. 26, it clearly emerges thatagainst the information sought about the PAN number of the spouse ofHthe appellant, it has been stated that “No PAN No.”, “Spouse K.

Aravindhan Foreign Citizenship”. Against the information soughtwithregard to “The financial year for which the last income tax return hasbeen filed”, the information supplied by the appellant about her spouse is“Not applicable”. The appellant has filled in all the columns of Form No.26 by furnishing the information with regard toherPermanent AccountNumber and status of filing of income tax return etc. and of her husbandwherever applicable. If according to the respondent-electionpetitioner,the appellant-returned candidate had suppressed the Permanent AccountNumber of her spouse and also about the non-payment of income tax ofher spouse in the foreign country, it was obligatory on the part of theElection petitioner to state in the Election petition as to what was thePermanent Account Number of the spouse of the returned candidate inIndiawhich was suppressed by her and how the other details furnishedabout her husband in the said Form No. 26 were incomplete or false.

31. Mere bald and vague allegations without any basis would notbe sufficient compliance of the requirement of stating material facts inthe Election Petition. As well settled not only positive statement of facts,even a positive statement of negative fact is also required to be stated,as it would be a material fact constituting a cause of action. The materialfacts which are primary and basic facts have to be pleaded by the Electionpetitioner in support of the case set up by him to show his cause ofaction and omission of a single material fact would lead to an incompletecause of action, entitling the returned candidate to pray for dismissal ofElection petition under Order VII Rule 11(a) CPC read with Section83(1)(a) of the RP Act.

32. It is also significant to note that an affidavit in Form 26 alongwith the nomination paper, is required to be furnished by the candidateas per Rule 4A of the said Rules read with Section 33 of the said Act.The Returning Officer is empowered either on the objections made toany nominationor on his own motion, to reject any nomination on thegrounds mentioned in Section 36(2), including on the ground that therehas been a failure to comply with any of the provisions of Section 33 ofthe Act. However, at the time of scrutiny of the nomination paper andthe affidavit in the Form 26 furnished by the Appellant-returned candidate,neither any objection was raised, nor the Returning Officer had foundany lapse or non-compliance of Section 33 or Rule 4A of the Rules.Assuming that the election petitioner did not have the opportunity to seethe Form No. 26 filled in by the Appellant-returned candidate, when she A

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Asubmitted the same to the Returning Officer, and assuming that theReturning Officer had not properly scrutinized the nomination paper ofthe appellant, and assuming that the election petitioner had a right toquestion the same by filing the Election petition under Section100(1)(d)(iv) of the said Act, then also there are no material facts statedin the petition constituting cause of action under Section 100(1)(d)(iv) ofBthe RP Act. In absence of material facts constituting cause of action forfiling Election petition under Section 100(1)(d)(iv) of the said Act,theElection petition is required to be dismissed under Order VII Rule11(a) CPC read with Section 13(1)(a) of the RP Act.

33. As elaborately discussed earlier, Section 83(1)(a) of RP ActCmandates that an Election petition shall contain a concise statement ofmaterial facts on which petitioner relies, and which facts constitute acause of action. Such facts would include positive statement of facts asalso positive averment of negative fact. Omission of a singular fact wouldlead to incomplete cause of action. So far as the present petition isDconcerned, there is no averment made as to how there was non-compliance with provisions of the Constitution or of RP Act or of theRules or Order made thereunder and as to how such non-compliancehad materially affected the result of the election, so as to attract theground under Section 100(1)(d)(iv) of the RP Act, for declaring theelection to be void. The omission to state such vital and basic facts hasErendered the petition liable to be dismissed under Order VII, Rule 11(a)CPC read with Section 83(i)(a) of the RP Act, 1951.

34. In that view of the matter, Election petition being no. 3/2019filed by the respondent-election petitioner deserves to be dismissed, andis accordingly dismissed.F

35. The impugned judgment of the High Court is set aside. Theappeals stand allowed accordingly.

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(Assisted by : Bhavyata Kapoor and Roopanshi Virang, LCRAs)

Appeals allowed.

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