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PETITIONER: DURAI MUTHUSWAMI

       Vs.

RESPONDENT: N.   NACHIAPPAN & ORS.

DATE OF JUDGMENT23/04/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. PALEKAR, D.G.

CITATION:  1973 AIR 1419            1974 SCR  (1)  40  1973 SCC  (2)  45

ACT: Representation  of  the People Act, 1951-S.  81,  100,  101- Whether  there should be specific averment in  the  petition that  due  to improper acceptance of nomination  Paper,  the result of the election had been materially  affected-Whether the case falls under s. 100(1)(a).

HEADNOTE: The  first  respondent was declared elected  to  Tamil  Nadu Legislative.  Assembly  defeating  his  nearest  rival,  the petitioner.  This appeal arises out of the dismissal of  the election  petition filed by the appellant for setting  aside the  result of that election.  Many grounds had  been  urged before  the High Court; but only one ground. which the  High Court refused to go into was urged before this Court:  i.e., that on the date of presenting his nomination paper, the 1st respondent   had  a  subsisting  contract  with  the   State Government  to  widen a road at an estimated cost of  Rs.  2 lakhs  and  that on the eve of  presentation  of  nomination papers, he purported to surrender the contract by submitting an  application for cancellation to the  Division  Engineer. whereas  the  contract  was  signed  by  the  Superintending Engineer, Madras Circle on behalf of the Government of Tamil Nadu,  and  this letter of cancellation was  not  valid  and therefore  there was no valid cancellation of the  contract, and as such, the election of the 1st responder., was void on that ground. The High Court, however, refused to go into the  ’allegation on  the  ground that there was no specific averment  in  the petition  that due to alleged improper reception on the  1st respondent’s nomination paper, the election result had  been materially affected. Allowing the appeal, HELD  :  (i) Under s. 83(1)(a), an election  petition  shall contain  a concise statement of material facts on which  the petitioner relies.  Under s. 100(1) if the High Court is  of opinion that on the date of his election, a returned  candi- date was not qualified to be chosen to fill the seat or that the  result of the election has been materially affected  by the  improper  acceptance of any nomination etc.;  the  High Court  shall declare the election of the returned  candidate void.  Therefore. what section 100 requires is that the High

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Court  before  it  declares  the  election  of  a   returned candidate void, should be of the opinion that the result  of the election, in so far as it concerns a returned candidate, has  been materially affected by the improper acceptance  of any  nomination.  Under s. 83, all that was necessary was  a concise  statement  of  the  material  facts  on  which  the petitioner     relies. (ii) In the present case, the appellant had stated that  the election is void because of  the improper acceptance of  the 1st respondents nomination.  It was not necessary for him to further allege that the result of the election in so far  as it  concerns  the  returned candidate  has  been  materially affected by the improper acceptance of the 1st  respondent’s nomination.  That is the obvious conclusion to be drawn from the  circumstances of this case.  Further, the  question  of the  election being materially affected does not arise in  a case  falling  under 100(1 ) (a).  All that s. 100(1  )  (a) requires  is  that on the date of this election  a  returned candidate was not qualified or was disqualified to be chosen to  fill the seat under the Constitution or the Act.   Under this  section in order’ to declare his election void  it  is not  necessary that election petition should state that  the result  of  the election was  materially  affected  thereby. [44G] Balakrishlia v. Farnandez, [1969] 3 S.C.R. 603, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 646 of 1972. Appeal under Sec. 116-A of the Representation of the  People Act,  1951, from the judgment and order dated  February  18, 1972 of the Madras High Court in E.P. No. 13 of 1971. 41 M.   Natesan,  K.  Jayaram  and C.  Chandrasekhar,  for  the appellant. M,   C. Chagla and A. Subhashini, for respondent No. 1. S.   Mohan and A. V. Rangam, for respondents Nos. 3 & 4. The Judgment of the Court was delivered by- ALAGIRISWAMI,  J.-This  appeal. arises out of  the  election held  to  fill  tip a seat in  the  Tamil  Nadu  Legislative Assembly  from  the Sankarapuram Constituency,  South  Arcot District,  held in March 1971 in which the first  respondent obtained  28,544 votes as against 28,472 votes  obtained  by the  petitioner and was thus declared elected.  This  appeal arises  out of the dismissal of the election petition  filed by  the  appellant  for setting aside  the  result  of  that election.   Though  many grounds had been urged  before  the High  Court  as well as in the petition of  appeal  in  this Court,  we are now concerned only with one ground which  the High  Court  refused to go into and was the only  one  which Shri Natesan appearing for the appellant urged before us. Before  the Returning Officer another candidate by the  name Ramaswami  bad  presented  an  objection  petition  to   the reception  of the 1st respondent’s nomination on the  ground that  he  had  a  subsisting  contract  with  the   Highways Department  of  the  State  of  Tamil  Nadu,  and  with  the Panchayat  Union,  Thiagadurgam, and was also an  agent  for selling  tickets  in the raffle conducted by  the  State  of Tamil   Nadu.    The  Returning   Officer   rejected   those contentions  and accepted the nomination papers of  the  1st respondent.   Subsequently,  Ramaswami  withdrew  from   the contest  and the appellant and the 1st respondent  were  the only  candidates in the election.  In his election  petition the  appellant had mentioned that on the date of  presenting

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his  nomination papers the 1st respondent had  a  subsisting contract  with  the State Government to widen  and  blacktop the,  Ulundurpet-Salem  road between 74 km and 86 km  at  an estimated  cost  of  Rs,  2  lakhs,  that  on  the  eve   of presentation of nomination papers he purported to  surrender the contract by submitting an application- for  cancellation to  the Division Engineer, Highways, Cuddalore, whereas  the contract  was signed by the Superintending Engineer,  Madras Circle on behalf of the Government of Tamil Nadu, that  this letter  of cancellation was not valid and therefore  there was  no valid cancellation of the contract.  He.  therefore, specifically  urged that the election of the 1st  respondent was  void on that ground.  The 1st respondent on  the  other hand  maintained that the cancellation of the  contract  was valid  and there was no subsisting contract on the  date  of filing  of  he  nomination and that the  contention  of  the petitioner that his election was void on that ground was not legally   sustainable.   He  also  contended  that  as   the petitioner  had not alleged that by reason of such  improper acceptance  the  result  of the election, in so  far  as  it concerned the 1st respondent, had been materially  affected, that allegations cannot be inquired into.  He also contended that  in  any case the result of the election had  not  been materially affected.  The learned Judge who dealt with  this matter upheld the contention of the respondent on the ground that the allegations in the petition had not stated that the result had been materially affected 42 by the alleged improper reception of the (1st  respondent’s) nomination  papers.   He  was  of  the  opinion  that   this allegation  relating  to  the  improper  acceptance  of  the nomination  of the first respondent cannot be  considered  a valid  ground, which could be gone into in the absence of  a specific  averment  that the election  had  been  materially affected.   To  complete the narrative it  is  necessary  to mention  that  the appellant had filed  an  application  for summoning  the necessary documents in order to  sustain  his case.  The documents necessary to be referred to, so far  as the present appeal is concerned, are only four in number :               1.    Objections to the nomination of the  1st               respondent (N.  Nachiappan) by A. Ramaswami.               2.    Documents produced by the 1st respondent               (N.   Nachiappan) at the time of the  scrutiny               of nomination.               3.    The   signed   agreement   between   the               Superintending   Engineer,  Highways,   Madras               Circle  and  N. Nachiappan in respect  of  the               contract  for         widening  the   existing               black   _top   surface   to   22   ft.    with               Ulundurpet-Salem) Road-Kilometre 74/2 to 86/4.               4.    Proceedings of the Divisional  Engineer,               Highways   and   Rural  Work,   Cuddalore   of               termination of the contract made by Rec.   No.               8280/70-B-3 dated 28-1-71. The  first two documents were to be summoned to be  produced by  the District Election Officer and the other two  by  the Superintending Engineer, Highways, Madras Circle. Before  dealing with the question whether the learned  Judge was right in holding that he could not go into the, question whether the 1st respondent’s nomination has been  improperly accepted  because  there was no allegation in  the  election petition that the election had been materially affected as a result  of  such improper acceptance, we may look  into  the relevant   provisions   of  law.   Under  s.   81   of   the Representation of the People Act, 1951 an election  petition

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calling in question any election may be presented on one  or more of the grounds specified in sub-section (1) of  section 100  and section 101.  It is not necessary to refer, to  the rest of the section.  Under section 83 (1 )(a), in so far as it  is necessary for the purposes of this case, an  election petition  shall contain a concise statement of the  material facts on which the petitioner relies.  Under section  100(1) if the High Court is of opinion- (a)  that  on the date of his election a returned  candidate was not qualified, or was disqualified, to be chosen to fill the ,eat under the Constitution or this Act.... (b)...................... (c)...................... (d)  that  the  result  of the election, in  so  far  as  it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or  43 the,  High Court shall declare the election of the  returned candidate to be void.  Therefore, what section 100  requires is that the High Court before it declares the election of  a returned  candidate  is void should be of opinion  that  the result  of the election in so far as it concerns a  returned candidate  has  been  materially affected  by  the  improper acceptance  of  any nomination.  Under s. 83  all  that  was necessary  was a concise statement of the material facts  on which  the  petitioner relies.  That the appellant  in  this case has done.  He has also stated that the election is void because  of the improper acceptance of the 1st  respondent’s nomination   and  the  facts  given  showed  that  the   1st respondent was suffering from a disqualification which  will fall under section 9A.  That was why it was called  improper acceptance.   We did not consider that in the  circumstances of  this  case it was necessary for the petitioner  to  have also  further alleged that the result of the election in  so far   as  it  concerns  the  returned  candidate  has   been materially  affected by the improper acceptance of  the  1st respondent’s nomination. , That is the obvious conclusion to be  drawn  from the circumstances of this case.   There  was only  one  sea,  to  be  filled  and  there  were  only  two contesting  candidates.   If  the allegation  that  the  1st respondent’s  nomination  has been  improperly  accepted  is accepted  the  conclusion  that would follow  is  that  the appellant  would  have  been  elected as  he  was  the  only candidate  validly  nominated There can be,  therefore,  no, dispute  that  the result of the election’ in so far  as  it concerns the returned candidate has been materially affected by  the improper acceptance of his nomination  because  but- for such improper acceptance he would not have been able  to stand  for the election or be declared to, be elected.   The petitioner  had  also  alleged that the  election  was  void because  of the improper acceptance of the 1st  respondent’s nomination.   In  the case of election to  a  single  member constituency  if there are more than two candidates and  the nomination  of  one  of the  defeated  candidates  had  been improperly  accepted the question might arise as to  whether the  result  of the election of the returned  candidate  had been  materially  affected by such improper  reception.   In such it case the question would arise as to what-would  have happened  to the votes which had been cast in favour of  the defeated  candidate  whose nomination  had  been  improperly accepted if it had not been accepted.  In that case it would be  necessary  for the person challenging the  election  not merely  to allege but also to prove, that the result of  the election  had  been  materially  affected  by  the  improper acceptance   of  the  nomination  of  the   other   defeated

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candidate.  Unless he succeeds in proving that if the  votes cast  in favour of the candidate whose nomination  had  been improperly  accepted  would have gone  in  the  petitioner’s favour and he would have got a majority he cannot succeed in his  election petition.  Section 100(1) (d) (i)  deals  with such  a  contingency.   It  is no,  intended  to  provide  a convenient  technical sell in a case like this  where  there can be no dispute at all about the election being materially affected  by  the  acceptance of  the  improper  nomination. "Materially  affected" is not a formula that has got  to  be specified  but  it  is  an  essential  requirement  that  is contemplated in this see- 44 tion.   Law  does  not contemplate a more  repetition  of  a formula.   The  learned  Judge  has  failed  to  notice  the distinction  between  a ground on which an election  can  be declared  to be void and the allegations that are  necessary in  an election petition in respect of such a  ground.   The petitioner   had  stated  the  ground  on  which   the   1st respondent’s election should be declared to be void.  He had also given the material facts as required under s. 83(1)(a). We  are, therefore, of opinion that the learned Judge  erred in holding that it was not competent for him to go into  the question  whether the 1st respondent’s nomination  had  been improperly accepted. One other point which the learned Judge failed to notice  is that  on the allegations contained in the petition, if  they Were  established, the respondent must be deemed  to  suffer the disqualification under S. 9A of the Act and all that  s. 100(1)(a)  requires  is that on the date of his  election  a returned candidate was not qualified or was disqualified  to be  chosen to fill the seat under the Constitution  or  this Act.   In  order  to declare his election  void  it  is  not necessary  that the election petition should state that  the result of the election was materially effected thereby.  The question of the election being materially affected does  not arise in a case falling under s. 100(1)(a). Though  it is not necessary to cite any authorities  we  may refer  to a few decisions.  In Balakrishna  v.  Fernandez(1) this Court pointed out that the first sub-section of section 100  lays down the grounds for declaring an election  to  be void,  that sections 100 and 101 deal with  the  substantive law  on  the subject of election, that  these  two  sections circumscribe  the  conditions  which  must  lie  established before an election can be declared void or another candidate declared elected.  It further observed :               "The heads of substantive rights in s.  100(1)               are  laid  down in two separate  parts  :  the               first  dealing  with situations in  which  the               election  must  be declared void on  proof  of               certain  facts,  and the second in  which  the               election  can  only be declared void  :if  the               result  of  the  election, in  so  far  as  it               concerns  the returned candidate, can be  held               to  be  materially affected on proof  of  some               other  facts in the first part they  are  that               the    candidate    lacked    the    necessary               qualification       or      had       incurred               disqualification.  These are grounds on  proof               of which by evidence, the election can be  set               aside  without  any  further  evidence.    The               second part is conditional that the result  of               the  election,  in  so far as  it  concerns  a               returned candidate, was materially affected by               the improper acceptance of a nomination.  This

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             condition  has  to  be  established  by   some               evidence  direct  or circumstantial.   It  is,               therefore,  clear that the substantive  rights               to  make an election petition are  defined  in               these  sections and the exercise of the  right               to   petition  is  limited  to   the   grounds               specifically mentioned.               Having  dealt with the substantive law on  the               subject of election petitions we may now  turn               to   the   procedural   provisions   in    the               Representation of the People Act.  Here we, (1)[1969] (3) S.C.R. 603.  45               have to consider sections 81, 83 and 86 of the               Act.  The first provides the procedure for the               presentation   of  election  petitions.    The               proviso to sub-section alone is material here.               It  provides that an election petition may  be               presented  ’on  one  or more  of  the  grounds               specified  in sub-section (1) of.  S. 100  and               s.  101.  That as we have shown above  creates               the,  substantive  right.   Section  83   then               provides  that  the  election  petition   must               contain  a concise statement of  the  material               facts on which the petitioner relies...... The               section  is  mandatory and  requires  first  a               concise statement of material facts...... What               is  the difference between material facts  and               particulars  ? The word ’material’ shows  that               the  facts necessary to formulate  a  complete               cause of action must be. stated.  Omission  of               a single material fact leads to an  incomplete               cause of action and the statement of claim be-               comes bad.  The function of particulars is  to               present  as,full  a picture of  the  cause  of               action with such further information in detail               as to make the opposite party understand  the,               case he will have to meet."               That lays down the proper test.  In Konappa v.               Viswanath(1) this Court pointed out that :               "Where by an erroneous order of the  Returning               Officer  poll  is  held which,  but  for  that               order,  was not necessary, the Court would  be               justified in declaring those contesting candi-               dates elected, who, but for that order,  would               have been declared elected." It was urged before us by Mr. Natesan that we should  summon the documents which were only four in number and decide  the case ourselves.  We do not know whether any further material would  or  would not be necessary to  establish  the  ground sought  to be made out by the appellant or whether any  oral evidence would be necessary.  In any case we do not consider it  either necessary or expedient that we should  deal  with the matter directly ourselves. The  appeal  is,  therefore, allowed and the  order  of  the learned  Judge  is  set  aside.   He  will  now  proceed  to determine  only the question regarding the  disqualification of   the  first  respondent  and,  therefore,  whether   the acceptance  of  his  nomination  was  improper.   The  first respondent will pay the appellant’s costs. S.C.                                       Appeal allowed. (1) [1969] (2) S.C.R. 90. 46

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