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PETITIONER: HARDWARI LAL

       Vs.

RESPONDENT: KANWAL SINGH

DATE OF JUDGMENT07/12/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. HEGDE, K.S. GROVER, A.N.

CITATION:  1972 AIR  515            1972 SCR  (3) 742  1972 SCC  (1) 214  CITATOR INFO :  R          1972 SC1302  (19,20)  F          1975 SC1788  (6)  RF         1976 SC 744  (34)  RF         1976 SC1187  (6)  RF         1985 SC 236  (66)  R          1986 SC1253  (10,14,18)  F          1987 SC1577  (28)  R          1990 SC1731  (10)

ACT: Representation  of the People Act, 1951  s.  123(7)--Corrupt practice  of  obtaining assistance etc.  from  a  Government servant--What constitutes--When material particulars are not supplied the petition must be dismissed.

HEADNOTE: The   appellant   was  declared  elected  to   the   Haryana Legislative  Assembly  from Bahadurgarh  constituency.   The respondent  challenged the election on various  grounds.  in para  16  of the election petition it was alleged  that  the appellant was guilty of the corrupt practice mentioned in s. 123(7)  of  the  Representation  of  the  People  Act.  1951 inasmuch  as  he  had  written  letters  to  six  Government servants  seeking  their assistance in  the  election.   The High-Court framed issue No. 5 to deal with this  allegation. The  appellant applied  to  the  High  Court  for  further particulars  to be supplied by the respondent in support  of his allegations in para 16 but the application was rejected. The High Court held the appellant guilty of the said corrupt practice  and  declared his election  void.   The  appellant appealed to this Court by special leave.  The question  that fell  for  consideration was Whether the  petition  was  not maintainable  in  view of the  appellant’s  contention  that material particulars in support of the allegation of corrupt practice which was the Subject-matter of Issue No. 5 had not been supplied. HELD : The different expressions used in s. 123(7),  namely, obtaining,,.   Procuring, ’abetting or attempting to  obtain or procure are various forms of corrupt practice.  It has to be   found  as  to  whether  the  allegation  of   obtaining assistance  amounts  to an allegation of fact.  It  is  well

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settled   that  general  expression   like   ’fraudulently’, ’negligently’ or ’maliciously’ in pleadings do not amount to allegations of fact. [746 H] In  the  present  case the allegations in  para  16  of  the election  petition  did  not  amount  to  any  statement  of material fact of corrupt practice.  It was not stated as  to what kind or form of assistance was obtained or procured  or attempted  to  be obtained or procured.  It was  not  stated from whom the particular type of assistance was obtained  or attempted to be obtained or procured.  It was not stated  in what  manner the assistance was for the furtherance  of  the prospect  of the election.  The government of the charge  of corrupt  practice  is obtaining or attempting to  obtain  or procure any assistance other than the giving of a vote.   In the absence of any suggestion as to what the assistance  was the,  election  petition was lacking in the most  vital  and essential  material fact to furnish a cause of  action.   It did not amount to an election petition on grounds  mentioned in  s.  123 (7) of the Act and was therefore  liable  to  be dismissed. [750 F-G] The  fact  that s. 83 under which material  particulars  are required to be supplied is not mentioned in s. 86 as one  of the  sections  non-compliance  with  which  must  result  in dismissal  of  the  petition  cannot  lead  to  a   contrary conclusion.  Under s. 87 of the Act every election  petition shall  be  tried by the High Court as nearly as  may  be  in accordance with the procedure applicable tinder the Code  of Civil Procedure 1908 to the trial of 743 Suits.   A suit which does not furnish cause of action  can be dismissed, [750H-751A] Samat N. Balakrishna etc.  George Fernandex & Ors., [1969] 3 S.C.R.  603,  Manubhai nandlal Amersey v.  Popatlal  Manilal Joshi & Ors., [1969] 3 S.C.R. 217 and Harish Chandra  Bajpai JUDGMENT:

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 129 of 1971. Appeal  under S. 116-A of ’the Representation of the  People Act,  1951  from the Judgment and Order dated  December  24, 1970  of  the  Punjab and Haryana High  Court  in  Election Petition No. 1 of 1970. Appellant appeared in person. Anand  Swaroop , Janardan Sharma and S. K. Nand.v,  for  the respondent. The Judgment of the Court was delivered by Ray,  J.  This  is an appeal under section  11  6-A  of  the Representation of the People Act (hereinafter referred to as the Act) from the judgment and order dated 24 December, 1970 of  the High Court of Punjab and Haryana setting  aside  the election of the appellant. The   appellant   was  declared  elected  to   the   Haryana Legislative  Assembly from Bahadur garh  Constituency.   The polling took place on 7 June, 1970.  The result was declared on  8  June.   The  appellant  obtained  22436  votes.   The respondent obtained 17760 votes. The  respondent  challenged  the  appellant’s  election   on numerous grounds. The election petition was filed on 23 July, 1970.  The writ- ten statement Was filed on 2 September, 1970.  Seven  issues were  framed at the trial on various allegations to  corrupt practice.   After the conclusion of evidence the  petitioner gave up pleas giving rise to issues No. 1 and 2. Issues  No.

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3(i), (iv), and (vi) were also given up.  Issues No.  3(ii), 3(iii),  3(v) and 3(vii) were pressed and the court  decided the  entire  issue No. 3, against the  election  petitioner. Issues  No. 4(a) and (b) were decided against  the  election petitioner.  Issue No. 5 was held to be proved only relating to  Chand Ram Rathi and the remaining issues were found  not to be proved.  Issue No. 6 was consequential on issue No.  5 and inasmuch as the election petitioner, called in  question only  the  election of the appellant and did not  claim  any declaration  either that the petitioner or any other  candi- date  bad  been elected, no question  of  declaration  under section 744 101  of the Act arose.  Issue No. 7 was answered by  holding that  the  appellant  was guilty of  commission  of  corrupt practice  under section 123(7) of the Act.  The High  Court, therefore, declared the election of the appellant to be void and  held the appellant guilty of the commission of  corrupt practice  under section 123(7) of the Act and awarded  costs amounting to Rs. 2000/-. The  election petition succeeded only on issue No. 5.  Issue No. 7 was the consequential relief.  Issue No. 5 related  to paragraph  16 of the petition and allegations as to  corrupt practice within the meaning of section 123(7) of the Act. The  only  question  for determination  in  this  appeal  is whether the election petition was maintainable in regard  to allegations  against the appellant under section  123(7)  of the Act, which were comprised in issue No. 5. The allegations in paragraph 16 of the petition were as fol- lows  : "That the respondent committed the corrupt  practice of  obtaining  and  procuring or attempting  to  obtain  and procure the assistance for the furtherance of the  prospects of  his election from the following persons who are  in  the service  of the Government and belonging to  the  prohibited classes within the meaning of section 123(7) of the Act;               1.    Shri   Chand  Ram  Rathi,  Lecturer   in               Political    Science,   Government    College,               Gurgaon.               2.    Shri    Gulab   Singh,   B.A.,    B.Ed.,               Government High Court, Jaharsa (Gurgaon).               3.    Pt. Bhim Singh, Assistant Sub-Inspector,               Police Security Lines, Lytton Road, New Delhi.               4.    Ch.  Chhattar Singh, M.A., B.T.  Teacher               V. & P.O. via Bahadurgarh, District Rohtak.               5.    Ch. Mukhtiar Singh, Inspector of Police,               Delhi.               6.    Ch.    Raghbir   Singh,   M.A.,    B.T.,               Bahadurgarh. The respondent has written letters under his own  signatures to  the above Government servants soliciting their help  and assistance in furtherance of the prospects of his election". The appellant submitted preliminary objections.  These  were inter  alia that paragraph 16 (4 the petition was liable  to expunction  "for it does not give the necessary  particulars about  the nature of assistance and the place and the  date where  and when such assistance was sought or received  from the  persons named in the petition".  The appellant  further dealt with paragraph 16 by denying the allegations. 745 The  High Court by an order dated 11 September,  1970  dealt with  the  preliminary  objection.   As  to  allegations  in paragraph  16 of the election petition the High  Court  said that in form BB filed by the election petitioner particulars of  letters written by the appellant to the various  persons mentioned  therein had been given at Serial Numbers 3 to  8.

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Dates  of  the  letters and the script in  which  they  were written and the persons to whom they were addressed had been mentioned  in  those  items.   Counsel  on  behalf  of  tile appellant  contended before the High Court that the  letters should  either  be  produced or details  of  their  contents should  be disclosed so as to enable the appellant  to  find out  whether  or  not the assistance alleged  to  have  been sought  from the addressees of those letters was or was  not sought  for  the  furtherance of  the  prospects  of   the appellant  in  election.   The  High  Court  said  that  the election   petitioner  could  not  be  expected  to  be   in possession  of letters and in the nature of thing  it  would not  be possible for the election petitioner to  change  the contents  of  letters  and  if and  when  the  letters  were produced or admitted or proved, it would be a mere matter of argument  whether the writing of the letters did or did  not fall within the corrupt ’practice defined in section  123(7) of  the  Act.  The High Court declined to allow  further  or better particulars asked for by the appellant. At  the  trial Chand Ram Rathi whose name was  mentioned  in item No. 8 in form BB annexed to the petition as one of  the persons  to  whom  the appellant had written  a  letter  was examined on behalf of the election petitioner on 3 December, 1970.   The  election  petitioner was  also  examined  on  3 December,   1970.   The  oral  evidence  of   the   election petitioner  was concluded on 4 December, 1970.  On the  same day, the appellant was examined by the Court under Order 12. Rule 3 (a) of the Code of Civil Procedure as to whether  the appellant  had written the letter marked Ex.  P.W.  34/1  to Chand  Ram Rathi.  On the same day, the appellant asked  for an  order  to recall Chand Ram Rathi.  One  oil  the  rounds given  by the appellant to recall the witness was to  put  a letter dated 27 May, 1970 written by Chand Ram Rathi to  the appellant.  The High Court declined to accede to the  prayer of  the appellant on the ground that recalling  the  witness for province the letter dated 27 May, 1970 written by  Chand Ram  Rathi  to  the appellant would  be  to  contradict  the statement  of Chand Ram Rathi and to show that he was not  a truthful witness. The  High  Court relied on the oral evidence  of  Chand  Ram Rathi  to whom the appellant had written a letter and  held that the appellant was guilty of corrupt practice within the meaning  of section 123 (7) of the Act. 746 The  appellant  appeared in person in this Court.   The  ap- pellant  raised  these  contentions.  Paragraph  16  of  the election  petition  did not contain  statement  of  material facts  to  amount  to any  allegation  of  corrupt  practice against  the  appellant.  The High Court declined  to  order particulars.   The  High Court allowed oral evidence  to  be adduced  by  the election petitioner in the absence  of  any pleading of material facts alleging ,corrupt practice within the  meaning of section 123(7) of The Act.   Therefore,  the appellant  contended  that  first  there  was  no  pleading, secondly, particulars were not allowed to give the appellant an  opportunity  of  knowing the  case;  and,  thirdly,  the High  .Court allowed proof of matters of which there was  no foundation .in the pleadings. Counsel  on behalf of the election petitioner on  the  other hand  .contended.t contended that the allegations were  that the appellant had sought assistance from Government servants for  the  furtherance of the ,prospects of  the  appellant’s election and particulars of letters were given and therefore the  election petitioner alleged material facts  and  proved the same in support of the allegations.

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Under  section  83  of  the Act  an  election  petition  (a" shall .,contain a concise statement of the material facts on which  the  petitioner  relies, (b) shall  set  fourth  full particulars  of  any corrupt practice  that  the  petitioner alleges,  including as full a statement ,as possible of  the names of the parties alleged to have committed such  corrupt practice  and the date and place of the commission  of  each such  practice.  It is manifest that the  election  petition shall  not  only contain material facts but also  set  forth particulars of corrupt practice.               Section 123(7) of the Act is as follows               "The  obtaining  or procuring or  abetting  or               attempting to obtain or procure by a candidate               or his agent or, by any other person with  the               consent of a candidate or his election  agent,               any assistance other than the giving of  vote)               for  the furtherance of the prospects of  that               candidate’s  election, from any person in  the               service of the Government and belonging to any               of the ,following classes, namely :               Clauses  (a) to (g) which need not be set  out               here". It  has  to  be  noticed  that  the  different   expressions obtaining,  procuring, abetting or attempting to  obtain  or procure  are various forms of corrupt practices.  It has  to be   found  as  to  whether  the  allegation  of   obtaining assistance amounts to an .,allegation of fact.  It will well settled that general expressions 747 like   ’fraudulently’  ’negligently’  or  ’maliciously’   in pleadings  do not amount to any allegation of fact.  A  fact is after all not a mere word. The provisions of the aforesaid section indicate these heads of  corrupt practices.  First, the obtaining by a  candidate or  his agent or by any other person any  assistance  (other than  the  giving  of  vote)  for  the  furtherance  of  the prospects  of that candidate’s election from any  person  in the  service of the Government as mentioned in the  section. Second, the procuring by a candidate or his agent or by  any other person with the consent of the election petitioner any assistance   (other  than  the  giving  of  vote)  for   the furtherance  of the prospects of that  candidates  election. Third,  the abetting by a candidate or his agent or  by  any other  person  with  the consent of  the  candidate  or  his election  agent  any assistance (other than  the  giving  of vote)   for  the  furtherance  of  the  prospects  of   that candidates election as mentioned.  Fourth, the attempting to obtain  or  procure by a candidate or his agent, or  by  any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance  of the prospects of that candidate’s  election. Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote.  It is clear that the four different heads of corrupt  practices are  (a)  obtaining  (b) procuring  (c)  abetting,  and  (d) attempting to obtain or procure assistance. Therefore,  material facts are to be alleged as  to  whether the candidate obtained or procured or abetted or  attempting to obtain or procure any assistance other than the giving of vote.   In  paragraph  16 of the  election  petition  it  is alleged that the appellant committed the corrupt practice or obtaining and procuring or attempting to obtain and  procure -assistance  for  the furtherance of the  prospects  of  his election   from  the  persons  mentioned   there.    Reading paragraph  16  of the election petition one will  search  in

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vain  to find out as to whether the allegations against  the appellant  are in regard to the assistance under both  heads or either head from each of the six persons mentioned there. One will speculate as to whether the appellant obtained  and procured or attempted to obtain and procure assistance  from each  or Some of the persons mentioned there.  Obtaining  or procuring or attempting to obtain or procure assistance  are separate and independent forms of corrupt  practice.   One will  guess  as  to whether the  allegations  are  that  the appellant  committed  all  or one or  more  of  the  corrupt practices of obtaining, procuring, attempting to obtain,  or procure assistance from each of the persons mentioned there. One will also conjecture and 748 hazard  as  to what assistance was obtained or  procured  or attempted  to  obtain or procure from each  of  the  persons mentioned  there,  for the furtherance of the  prospects  of that candidate’s election.  The giving of vote is not within the mischief of corrupt practice.  It  cannot be  understood from the petitioner whether the giving  of   vote   is   the assis tance alleged.  It is, therefore, apparent that  the appellant  who was charged by the election  petitioner  with corrupt practice should be told in the election petition  as to  what assistance he sought.  The type of assistance,  the manner  of  assistance, the time of assistance,  the  person from whom assistance is sought are all to be set out in  the petition  about the actual and the specific assistance  with which  the  appellant  can be charged in  violation  of  the provisions  of the Act.  Nor is there any statement  in  the election  petition  describing  the  manner  in  which   the prospects  of  the election were furthered and  the  way  in which the assistance was rendered.  The allegations  against the  appellant were in relation to six persons.   Therefore, it was essential and imperative for the election  petitioner to  set  out  with  exactitude and  precision  the  type  of assistance  as  also  the manner  in  which  assistance  was obtained  or procured from each person.  The time, the  date and the place of the assistance were also required to be set out  in the particulars.  Thus it had to be alleged  as  the material facts as to what assistance the appellant  obtained or  procured  or abetted or attempted to obtain  or  procure from  which  person  and how the  assistance  furthered  the prospects  of  the appellant’s election.  If  all  the  four variants  and  ingredients were to be  charged  against  the appellant these had to be set out as statements of  material facts in relation to each person. The  requirements  in an election petition  as  to  material facts  and  the consequences of lack of such  allegation  of material  facts came up for consideration in this  Court  in the recent decision in Samant N. Balakrishna etc. v.  George Fernandes  &  Ors. etc. (1969) 3 S.C.R. 603.  In  that  case reference  was made to sections 81, 83 and 86 of the Act  as the  procedure provisions of election petition.  Section  81 deals with presentation of petitions.  Section 83 deals with contents  of  petitions.   Section 86 deals  with  trial  of petitions.   Hidayatullah, C.j. speaking for the Court  laid down  these propositions.  First, section 83 of the  Act  is mandatory and requires first a concise statement of material facts  and then requires the fullest  possible  particulars. Second,  omission  of a single material fact  leads  to  an incomplete cause of action and the statement of calm becomes bad.   Third, the function of particulars is to  present  in full  a picture of the cause of action to make the  opposite party  understand  the case be will have to  meet.   Fourth, material   facts  and  particulars  are  distinct   matters.

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Material facts will mention statements of fact in 749 particulars will set out the names of person with the, date, time and place.  Fifth, material facts will show the  ground of corrupt practice and the complete cause of action and the circulars  will give the necessary information to present  a full picture of the cause of action.  Sixth, in stating  the material  facts it will not do merely to quote the words  of the section because then the efficacy of the material  facts will be lost.  The fact which constitutes a corrupt practice must  be, stated and the fact must be correlated to  one  of the  heads  of  corrupt  practice.   Seventh,,  an  election petition  without the material facts relating to  a  corrupt practice is no election petition at all.  A petition  which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of  assistance unless the exact type and form of  assistance and  the  person from whom it is sought and  the  manner  in which  the  assistance is to further the  prospects  of  the election are alleged as statement,% of facts. The importance of material facts and the distinction between the  material facts and particulars was also brought out  in another  recent decision of this Court in  Manubhai  Nandlal Amersey  v. Popatlal Manilal Joshi & Ors., (1969)  3  S.C.R. 217.   In  that  case a charge in  the  petition  was  that. several  persons  with the consent of the appellant  or  his election agents induced or attempted to induce the  electors to  believe  that  if  they voted  for  the  congress  party candidate  they  would  become the objects  of  divine  dis- pleasure  and  spiritual censure.  At a late  stage  of  the trial  the High Court gave leave to the election  petitioner to  amend  the petition by adding fresh particulars  of  the corrupt practice.  Bachawat, J. speaking for the court  said that section 83 of the Act was mandatory and particulars  of corrupt  practice were to set out in full.  It was  said  in that  case that no amendment in the shape of particulars  of corrupt practice was permissible if the corrupt practice was not  previously alleged in the petition.  The  obvious  need not  be stressed.  It is that an election petition  has  the effect  of  declaring  an election void.  It  is  a  serious remedy.   It  is therefore vital that the  corrupt  practice charged  against  the  respondent  should  be a  full  and complete   statement  of  material  facts  to   clothe   the petitioner  with a complete cause of action and to  give  an equal  and  full opportunity to the respondent to  meet  the case  and to defend the charges.  Merely, alleging that  the respondent  obtained or procured or attempted to  obtain  or pro  cure assistance are extracting ’words from the  statute which will have no meaning unless and until facts are stated to  show  what that assistance is and how  the  prospect  of election  is furthered by such assistance.  In the  present case,  it was not even alleged that the assistance  obtained or procured was other than the giving of vote.  It was  said by: counsel for the respondent that because 750 the  statute  did not render the giving of  vote  a  corrupt practice  the words ’any assistance’ were full statement  of material fact.  The submission is fallacious for the  simple reason   that  the  matter  of  assistance,  the   mode   of assistance,  the  manner  of  assistance,  the  measure   of assistance  are  all various aspects of fact to  clothe  the petition  with  a  cause of action which will  call  for  an answer.  Material facts are facts which if established would give the petitioner the relief asked for.  If the respondent had  not  appeared could the court have given a  verdict  in

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favour  of  the election petitioner.  The answer is  in  the negative  because  the allegations in the petition  did  not disclose any cause of action. The necessity of clear and precise allegations to support  a plea  of  corrupt practice was emphasised by this  Court  in Harish  Chandra Bapai & Anr. v. Triloki Singh,  12  Election Law  Reports  461.  Venkatarama Ayyar, J. speaking  for  the court  in  dealing  with the powers of the  court  to  allow amendment  in  respect of illegal or corrupt  practice  said that  where  the  allegation in the  election  petition  ’in regard  to  the corrupt practice was  that  the  respondents could in furtherance of their election enlist the support of Government servants, the words ’could enlist’ did not amount to an averment that in fact they enlisted their support.  In other  words, it was observed that the word  ’could  enlist’ did  not  allege  a fact  which  happened.   Therefore,  the happening of a fact as well as the fact itself is  material. Judged  by  that  test  in the  present  case  there  is  no allegation  which  will  amount  lo  any  averment  of   any assistance  as  a  fact  in  the  absence  of  the  kind  of assistance being set out as a fact. The allegations in paragraph 16 of the election petition  do not  amount  to any statement of material  fact  of  corrupt practice.   It  is not stated as to which kind  or  form  of assistance  was obtained or procured or attempted to  obtain or procure.  It is not stated from whom the particular  type of  assistance  was  obtained or procured  or  attempted  to obtain  or  procure.  It is not stated in  what  manner  the assistance  was for the furtherance of the prospects of  the election.   The gravamen ’of the charge of corrupt  practice within the meaning of section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or  procure any  assistance  other  than the giving  of  vote.   In  the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action. Counsel on behalf of the respondent submitted that an  elec- tion  could not be dismissed by reason of want  of  material facts  because section 86 of the Act conferred power on  the High  Court to dismiss the election petition which  did  not comply with 751 the  provisions of section 81, or section 82 or section  117 of the Act.  It was emphasized that section 83 did not  find place  in  section 86.  Under section 87 of  the  Act  every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable  under the Code of Civil procedure, 1908 to the trial of suits.   A suit  which  does  not  furnish  cause  of  action  can   be dismissed. In  the  present  case, it is not necessary  to  go  to  the question  as  to  whether the High Court  was  justified  in disallowing  the particulars and in refusing to  recall  the witnesses  for  the  reasons given  in  the  order,  because paragraph  16  of the election petition on  which  the  High Court  relied to declare the election of the appellant  void does  not  amount  to an election petition  on  the  grounds mentioned in section 123 (7) of the Act. For  these  reasons the judgment of the High  Court  is  set aside  The appeal is allowed.  The election  petition  shall stand  dismissed. The parties will pay and bear their  costs in this appeal. G.C.                 Appeal allowed. 752

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