1998 Supreme(SC) 1183

1998(9) Supreme 193
Supreme Court of India
(From Karnataka High Court)
Dr. A.S. Anand, CJI., B.N. Kirpal and M. Srinivasan, JJ.
L.R. Shivaramagowda, etc. -Appellants
versus
T.M. Chandrashekar etc. -Respondents
Civil Appeal No. 4272 of 1991
With
Civil Appeal No. 4379 of 1991
Decided on 1-12-1998
Counsel for the Parties :
For the Appellant in C.A.No. 4379/91 : K.N. Bhat, Sr. Advocate, P.R. Ramasesh, Advocate.
For the Appellant in C.A.No. 4272/91: S.S. Javeli, Sr. Advocate, D.N. Nanjunda Reddy and Vineet Kumar, Advocates.
For the Respondent in C.A.No. 4379/92 : S.S. Javeli, Sr. Advocate, D.N. Nanjunda Reddy, Advocate.

Important points
1. Sub-section (6) of Section 123 of Representation of People Act, does not take into its fold the failure to maintain true and correct accounts.
2. In order to declare an election to be void under Section 100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead that the result of the election in so far as it concerned the returned candidate had been materially affected by the alleged non-compliance with the provisions of the Act or of the Rules. Absence of such averment in election petition would invalidate election petition.

Headnote:(i) Representation of People Act, 1951-Section 123(6) read with Section 100(1)(d)(iv)-Corrupt practice-Failure to maintain true and correct accounts-Sub-section (6) of Section 123 does not take into its fold, the failure to maintain true and correct accounts.

       Held : In order to bring a matter within the scope of sub-section (1)(b), the corrupt practice has to be one defined in Section 123. What is referred to in sub-section (6) of Section 123 as corrupt practice is only the incurring or authorising of expenditure in con­travention of Section 77. Sub-section (6) of Section 123 does not take into its fold, the failure to maintain true and correct accounts. The language of sub-section (6) is so clear that the corrupt practice defined therein can relate only to sub-section 3 of Section 77 i.e. the incurring or authorising of expenditure in excess of the amount prescribed. It cannot by any stretch of imagination be said that non-compliance with Section 77(1) & (2) would also fall within the scope of Section 123(6). Consequently, it cannot come fall under Section 100(1)(b). The essential requirement under sub-section (1)(d)(iv) of Section 100 is that the result of the election in so far as it con­cerns the returned candidate has been materially affected. It is needless to point out that failure on the part of the returned candi­date to maintain accounts as required by Section 77(1) & (2) will in no case affect, and much less materially, the result of the election. (Para 18)

       It was argued by learned counsel for the first respondent that the aforesaid view would enable any successful candidate at an elec­tion to snap his fingers at the law prescribing the maximum limit of expenditure and escape from the provisions of Section 77(3) by filing false accounts. According to him, if the aforesaid construction of Section 77 and 123(6) is to be adopted, there will be no sanction against a candidate who incurs an expenditure exceeding the maximum prescribed limit. Referring to Section 10(A) of the Act which enables the Election Commission to disqualify a person who had failed to lodge an account of election expenses within the time and in the manner required by or under the Act and had no good reason or justification for the failure, he contended that the said Section provides only for a situation arising out of failure to lodge an account and not a situation arising from a failure to maintain true and correct ac­counts. We are unable to accept this contention. In our opinion, sub-section (a) of Section 10(A) takes care of the situation in as much as it provides for lodging an account of election expenses in the manner required by or under the Act. Section 77(2) provides that the accounts shall contain such particulars as may be prescribed. Rule 86 of the Conduct of Election Rules provides for the particulars to be set out in the account. The said Rule prescribes that a voucher shall be obtained for every time of expenditure and for lodging all vouchers along with the account of election expenses. Rule 89 provides that the District Election Officer shall report to the Election Commission, the name of each contesting candidate, whether such candidate has lodged his account of election expenses and if so the date on which such account has been lodged and whether in his opinion such account has been lodged within the time and in the manner required by the Act and the rules. That Rule enables the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is found to be incorrect or untrue by the Election Commission after enquiry under Rule 89, it could be held that the candidate had failed to lodge his account within the meaning of Section 10(A) and the Election Commission may disqualify the said person. Hence, we do not find any substance in the argument of learned counsel for the first respondent. (Para 22)

       Thus where the High Court has taken the view that the accounts of election expenses filed by the appellant before the District Election Officer were not correct or true and consequent­ly the appellant had not complied with the provisions of Section 77(1) and (2) of the Act with the result, he fell within the scope of Sec­tion 100(1)(d)(iv) of the Act and consequently his election was declared void, the Su­preme Court set aside the judgment of the High Court. (Para 9)

       (ii) Representation of People Act, 1951-Section 100(1)(d)(iv)-Con­duct of election Rules - Rule 94A - Corrupt practice-Require­ments of pleading and proof-For purpose of Section 100(1)(d)(iv) it is necessary to aver specifically that result of election in so far as it concerns a re­turned candidate has been materially affected due to said corrupt practice-Allegation in election petition that returned candidate spent amount more than limits prescribed and failed to give correct and true account of expenditure-No averments in petition that re­turned candidate had spent amount exceeding prescribed limit or elec­tion was materially affected by failure of returned candidate to give true and correct account of expenditure-Affidavit filed with election petition did not disclose source of infor­mation-Material facts absent in election petition-Election petition suffered from very serious defect-Defects invalidated election petition.

       Held : In order to declare an election to be void under Section 100(1)(d) (iv), it is absolutely necessary for the election petitioner to plead that the result of the election in so far as it concerned the returned candidate had been materially affected by the alleged non-compliance with the provisions of the Act or of the Rules. We have already extracted paragraph 39 of the Election Petition which is the only relevant paragraph. One will search in vain for an averment in that paragraph that the appellant had spent for the election an amount exceeding the prescribed limit or that the result of the election was materially affected by the failure of the appellant to give true and correct accounts of expenditure. In the absence of either averment it was not open to the appellant to adduce evidence to that effect. It cannot be denied that the two matters referred to above are material facts which ought to find a place in an election petition if the election is sought to be set aside on the basis of such facts. (Para 10)

       This court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between “Material facts” and “Material particulars”. While the failure to plead material facts is fatal to the election petition and no amendment of the plead­ing could be allowed to introduce such material facts after the time limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by appropriate amendment. (Para 11)

       There is no doubt whatever that the election petition suffers from a very serious defect of failure to set out material facts of the al­leged corrupt practice. The defect invalidates the election petition in that regard and the petitioner ought not to have been permitted to adduce any evidence with reference to the same. (Para 16)

       The affidavit filed along with the election petition. It does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paragraphs (a) to (e) of the affidavit state that the averments therein are true to his information. Paragraph (f) is silent on this aspect of the matter. Paragraph (g) refers all the 42 paragraphs in the petition. The affi­davit is not in conformity with the prescribed Form No. 25. Thus there is a failure to comply with Rule 94-A of the Conduct of Election Rules. It is a very serious defect which has been overlooked by the High Court. (Para 16A)

       The first respondent made an attempt to show that the pleading contains the relevant material facts. According to him, paragraph 39 of the election petition sets out the expenses incurred by the appellant per vehicle per day and the total number of vehicles used by him. It was also contended that the price of the newspaper Nagamangala Mitra per copy was mentioned and the total number of copies purchased for distribution to the voters was also mentioned. It was argued that those were the material facts and by themselves they proved that the appellant had incurred an expenditure exceeding the prescribed limit. We are unable to accept this conten­tion. After setting out those figures, the averment found in the election petition is only to the effect that the said cost incurred by the appellant had not been furnished in his statement of account. The fact that in the last part of the said sentence, it was alleged that there was contravention of Section 123(6) of the Act, would not come to the aid of the first respondent to contend that the relevant mate­rial fact of excessive expenditure over and above the prescribed limit had been pleaded. We must also refer to the fact that for the purpose of Section 100(1)(d)(iv), it is necessary to aver specifically that the result of the election in so far as it concerns a returned candi­date has been materially affected due to the said corrupt practice. Such averment is absent in the petition. (Para 17)