2000 Supreme(SC) 135

2000(1) Supreme 290
Supreme Court of India
(From Madras High Court)
Dr. A.S. Anand, CJI., D.P. Wadhwa and S. Rajendra Babu, JJ.
Mr. V. Narayanaswamy —Appellant
versus
Mr. C.P. Thirunavukkarasu —Respondent
Civil Appeal No. 3871 of 1999
Decided on 19-1-2000
Counsel for the Parties :
For the Appellant : M.C. Bhandare, Sr. Advocate, J. Satyanarayana, Ms. C.K. Sucharita, Ranji Thomas, Advocates.
For the Respondent : S. Sivasubramaniam, R. Mohan, Sr. Advocates, S. Thananjayan, M.A. Krishnamurty, Advocates.

Important Points
1. The existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those, the Court has jurisdiction to dismiss the petition.
2. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings.

Headnote:(i) Representation of People Act, 1951—Section 83(1) r/w Section 123(1)B(b)—Code of Civil Procedure, 1908—Order 7 Rule 11—Election petition—Dismissal in limine for want of cause of action—Court has to find out whether averments disclose a cause action or a triable issue—If on conjoint reading of provisions of Sections 81, 83(1)(c) and 86 r/w Rule 94-A and Form 25 Court finds non-compliance it has no option except to dismiss election petition—Petitioner must state which of allegations of corrupt practice are true to his knowledge—If verification in petition nor affidavit gives any indication of source of information of petitioner as to facts stated in petition which are not to his knowledge and petitioner persists verification is correct and affidavit does not suffer from any defect, allegation of corrupt practice cannot be inquired into—In such a case election petition must be dismissed in limine.

       An election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of duty of the court suo moto even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition. (Para 21)

       (ii) Representation of People Act, 1951—Section 83(1) r/w Section 123(1)(B)(b)—Code of Civil Procedure, 1908—Order 7 Rule 11—Dismissal of election petition for want of cause of action—Election petition alleging corrupt practice—Returned candidate seeking dismissal on ground material facts necessary to constitute not pleaded in affidavit and petition had not been verified properly and affidavit did not conform to requirements of law—Election petitioner persist in his stand that verification was correct and affidavit did not suffer from any defect—Allegation that election petitioner could not meet voters MLAs as they were kept in various places and entertained by agents of returned candidate—No allegation that MLAs were ‘confined’—No material as to who kept MLS, where and who met bill etc.—No particulars given as to illegal gratification or undue influence on MLAs—Petition did not state as to how he could not meet MLAs—Verification of petition affidavit not in accordance with requirement of law—Election petition rightly dismissed in limine.

       Held : Under Section 123 "corrupt practice" in so far it is relevant in the present case means "Bribery", that is to say — The receipt of, or agreement to receive, any gratification, whether as a motive or a reward by (any person whomsoever for himself or any other person)—(a) for voting or refrain from voting, or (b) inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. The term gratification has been explained and it includes all forms of entertainment. Exercise of undue influence is also deemed to be a corrupt practice. Under sub-section (2) of Section 123 "undue influence" means any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right. (Paras 22 & 23)

       Material facts and material particulars certainly connote two different things. Material facts are those facts which constitute the cause of action. In a petition on the allegation of corrupt practice cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegations of corrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter. If proved not only that the candidate suffers ignominy, he also suffers disqualification from standing for election for a period that may extend to six years. Reference in this connection may be made to Section 8A of the Act. It was for this purpose that proviso to sub-section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f. September 20, 1961) requiring filing of the affidavit in the prescribed form where there are allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affidavit it has to conform not only to the form prescribed in substance but has also to contain particulars as required by the Rules. (Para 24)

       It was contended that all the material facts have been stated in the election petition and that for lack of material particulars, the petition could not have been thrown out at the threshold. He said opportunity should have been given to the appellant to supply the material particulars. It is really of strange proposition to advance. Till the date of the impugned judgment, appellant had persisted that the petition did not lack material particulars and that the verification was in accordance with the Code and the affidavit in support of the corrupt practice in the form prescribed. Admittedly, the petition lacked material particulars, verification to the petition was not in accordance with the Code and the affidavit did not conform to the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars and that the verification to the petition and the affidavit were not in accordance with the law. This was repeated in the miscellaneous application (Original Application No. 298/98). In the counter affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and termed the objections raised by the respondent as irrelevant. It is not that the appellant did not have opportunity to correct his mistake which he could have easily done in the rejoinder filed by him to the counter affidavit of the respondent or even his reply to the miscellaneous application (O.A. No. 298/98). He had every opportunity even at that stage to supply the material particulars which admittedly were lacking and also to amend the verification and to file the affidavit in the form prescribed but for the reasons best known to him, he failed to do so. The existence of material facts, material particulars, correct verification and the affidavit are relevant and important when the petition is based on the allegation of corrupt practice and in the absence of those, the Court has jurisdiction of dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is no duty cast on the High Court to direct suo moto the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioner. (Para 25)

       Grievance of the appellant is that he wanted to meet the MLAs other than MLAs of the Congress party to which he belonged but those MLAs were kept first in Hotel Ashoka at Pondicherry and then taken to five star hotels at Mahabalipuram. Appellant alleged that MLAs were "kept" in Hotel Ashoka but he has not given particulars as to what he meant by the word "Kept" is certainly not "confined". What entertainment was provided to those MLAs in Hotel Ashoka, Pondicherry or in five star hotels in Mahabalipuram has also not been specified. It is not his case that he was prevented in any way from meeting any of those MLAs. It was a material fact to allege which he failed to do so. This is apart from the fact that the material particulars as to when the MLAs were taken to Hotel Ashoka and to other places, the names of the MLAs and names of the hotels in Mahabalipuram, who took them there, who paid their bills and who brought them back are lacking. Appellant does not show as to whey he could not meet all those MLAs on October 2, 1997. Apart from one independent MLA other MLAs belonged to various other political parties like DMK, TMC, CPI, PMK and Janata Dal. Rather it can be assumed that the MLAs voted according to their political affiliations. It has come on record that out of total number of 29 MLAs who constituted Legislative Assembly of Pondicherry, two belonged to AIDMK, another political party. AIDMK had taken decision not to vote for any candidate and that is how the two MLAs of this party did not participate in the election and total votes polled were 27. There was only one independent MLA and his casting of vote either way would not have at all affected the result of the election considering the number of votes polled by each of the candidates. It is not the case of the appellant that he was barred from meeting any of the MLAs in order to solicit their votes. There is no allegation if there is any complaint by any MLA that he was kept out of circulation by respondent or with his consent by any other person for the purpose of not being accessible to the appellant. (Para 26)

       Election petition not only lacked the material facts, it lacked material particulars, defective verification and the affidavit filed was not in the form prescribed. Moreover, ingredients of corrupt practices as defined in Section 123(1)(B) and 123(2) of the Act are also lacking. It is also not the case of the appellant that any MLA whom the appellant could not meet, received any gratification, as defined, whether as a motive or a reward for voting or refraining from voting, or there was any inducement or attempt to induce any such MLA to vote or refrain from voting. Also it is not the case of the appellant that any undue influence was exercised with the free exercise of any electoral right of any MLA which right, as noted above, has been defined in clause (d) of Section 79 of the Act. There is no allegation if any particular MLA was induced to vote or not to vote in a particular way because he was entertained or otherwise. The allegation is that appellant himself could not meet the MLAs and he believed if he had been given a chance to meet them he would have influenced their vote in his favour and against their party of affiliations. There is no allegation that the MLAs were prevented or influenced from freely exercising their electoral right. As stated earlier appellant did not show as to why he could not meet the MLAs on October 2, 1997 when they were available in Pondicherry. Material fact must be that the appellant was prevented from meeting the MLAs which he did not allege and as to how he was so prevented would constitute material particulars. The election petition read as a whole did not disclose any cause of action or triable issue. Therefore, the election petition was rightly dismissed in limine by the High Court. (Paras 28 & 29)