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 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
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
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
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
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.
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