{"id":239852,"date":"1973-04-23T00:00:00","date_gmt":"1973-04-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/durai-muthuswami-vs-n-nachiappan-ors-on-23-april-1973"},"modified":"2018-03-23T19:38:06","modified_gmt":"2018-03-23T14:08:06","slug":"durai-muthuswami-vs-n-nachiappan-ors-on-23-april-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/durai-muthuswami-vs-n-nachiappan-ors-on-23-april-1973","title":{"rendered":"Durai Muthuswami vs N. Nachiappan & Ors on 23 April, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Durai Muthuswami vs N. Nachiappan & Ors on 23 April, 1973<\/div>\n
Equivalent citations: 1973 AIR 1419, \t\t 1974 SCR (1)\t 40<\/div>\n
Author: A Alagiriswami<\/div>\n
Bench: Alagiriswami, A.<\/div>\n
           PETITIONER:\nDURAI MUTHUSWAMI\n\n\tVs.\n\nRESPONDENT:\nN.   NACHIAPPAN & ORS.\n\nDATE OF JUDGMENT23\/04\/1973\n\nBENCH:\nALAGIRISWAMI, A.\nBENCH:\nALAGIRISWAMI, A.\nPALEKAR, D.G.\n\nCITATION:\n 1973 AIR 1419\t\t  1974 SCR  (1)\t 40\n 1973 SCC  (2)\t45\n\n\nACT:\nRepresentation\tof  the People Act, 1951-S.  81,  100,\t101-\nWhether\t there should be specific averment in  the  petition\nthat  due  to improper acceptance of nomination\t Paper,\t the\nresult of the election had been materially  affected-Whether\nthe case falls under s. 100(1)(a).\n\n\n\nHEADNOTE:\nThe  first  respondent was declared elected  to\t Tamil\tNadu\nLegislative.  Assembly\tdefeating  his\tnearest\t rival,\t the\npetitioner.  This appeal arises out of the dismissal of\t the\nelection  petition filed by the appellant for setting  aside\nthe  result of that election.  Many grounds had\t been  urged\nbefore\tthe High Court; but only one ground. which the\tHigh\nCourt refused to go into was urged before this Court:  i.e.,\nthat on the date of presenting his nomination paper, the 1st\nrespondent   had  a  subsisting\t contract  with\t the   State\nGovernment  to\twiden a road at an estimated cost of  Rs.  2\nlakhs  and  that on the eve of\tpresentation  of  nomination\npapers, he purported to surrender the contract by submitting\nan  application for cancellation to the\t Division  Engineer.\nwhereas\t the  contract\twas  signed  by\t the  Superintending\nEngineer, Madras Circle on behalf of the Government of Tamil\nNadu,  and  this letter of cancellation was  not  valid\t and\ntherefore  there was no valid cancellation of the  contract,\nand as such, the election of the 1st responder., was void on\nthat ground.\nThe High Court, however, refused to go into the\t 'allegation\non  the\t ground that there was no specific averment  in\t the\npetition  that due to alleged improper reception on the\t 1st\nrespondent's nomination paper, the election result had\tbeen\nmaterially affected.\nAllowing the appeal,\nHELD  :\t (i) Under s. 83(1)(a), an election  petition  shall\ncontain\t a concise statement of material facts on which\t the\npetitioner relies.  Under s. 100(1) if the High Court is  of\nopinion that on the date of his election, a returned  candi-\ndate was not qualified to be chosen to fill the seat or that\nthe  result of the election has been materially affected  by\nthe  improper  acceptance of any nomination etc.;  the\tHigh\nCourt  shall declare the election of the returned  candidate\nvoid.  Therefore. what section 100 requires is that the High\nCourt  before  it  declares  the  election  of\ta   returned\ncandidate void, should be of the opinion that the result  of\nthe election, in so far as it concerns a returned candidate,\nhas  been materially affected by the improper acceptance  of\nany  nomination.  Under s. 83, all that was necessary was  a\nconcise\t statement  of\tthe  material  facts  on  which\t the\npetitioner     relies.\n(ii) In the present case, the appellant had stated that\t the\nelection is void because of  the improper acceptance of\t the\n1st respondents nomination.  It was not necessary for him to\nfurther allege that the result of the election in so far  as\nit  concerns  the  returned candidate  has  been  materially\naffected by the improper acceptance of the 1st\trespondent's\nnomination.  That is the obvious conclusion to be drawn from\nthe  circumstances of this case.  Further, the\tquestion  of\nthe  election being materially affected does not arise in  a\ncase  falling  under 100(1 ) (a).  All that s. 100(1  )\t (a)\nrequires  is  that on the date of this election\t a  returned\ncandidate was not qualified or was disqualified to be chosen\nto  fill the seat under the Constitution or the Act.   Under\nthis  section in order' to declare his election void  it  is\nnot  necessary that election petition should state that\t the\nresult\tof  the election was  materially  affected  thereby.\n[44G]\nBalakrishlia v. Farnandez, [1969] 3 S.C.R. 603, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 646 of 1972.
\nAppeal under Sec. 116-A of the Representation of the  People
\nAct,  1951, from the judgment and order dated  February\t 18,
\n1972 of the Madras High Court in E.P. No. 13 of 1971.\n<\/p>\n
41<\/span><\/p>\n
M.   Natesan,  K.  Jayaram  and C.  Chandrasekhar,  for\t the
\nappellant.\n<\/p>\n
M,   C. Chagla and A. Subhashini, for respondent No. 1.
\nS.   Mohan and A. V. Rangam, for respondents Nos. 3 & 4.
\nThe Judgment of the Court was delivered by-
\nALAGIRISWAMI,  J.-This\tappeal. arises out of  the  election
\nheld  to  fill\ttip a seat in  the  Tamil  Nadu\t Legislative
\nAssembly  from\tthe Sankarapuram Constituency,\tSouth  Arcot
\nDistrict,  held in March 1971 in which the first  respondent
\nobtained  28,544 votes as against 28,472 votes\tobtained  by
\nthe  petitioner and was thus declared elected.\tThis  appeal
\narises\tout of the dismissal of the election petition  filed
\nby  the\t appellant  for setting aside  the  result  of\tthat
\nelection.   Though  many grounds had been urged\t before\t the
\nHigh  Court  as well as in the petition of  appeal  in\tthis
\nCourt,\twe are now concerned only with one ground which\t the
\nHigh  Court  refused to go into and was the only  one  which
\nShri Natesan appearing for the appellant urged before us.
\nBefore\tthe Returning Officer another candidate by the\tname
\nRamaswami  bad\tpresented  an  objection  petition  to\t the
\nreception  of the 1st respondent’s nomination on the  ground
\nthat  he  had  a  subsisting  contract\twith  the   Highways
\nDepartment  of\tthe  State  of\tTamil  Nadu,  and  with\t the
\nPanchayat  Union,  Thiagadurgam, and was also an  agent\t for
\nselling\t tickets  in the raffle conducted by  the  State  of
\nTamil\tNadu.\t The  Returning\t  Officer   rejected   those
\ncontentions  and accepted the nomination papers of  the\t 1st
\nrespondent.   Subsequently,  Ramaswami\twithdrew  from\t the
\ncontest\t and the appellant and the 1st respondent  were\t the
\nonly  candidates in the election.  In his election  petition
\nthe  appellant had mentioned that on the date of  presenting
\nhis  nomination papers the 1st respondent had  a  subsisting
\ncontract  with\tthe State Government to widen  and  blacktop
\nthe,  Ulundurpet-Salem\troad between 74 km and 86 km  at  an
\nestimated  cost\t of  Rs,  2  lakhs,  that  on  the  eve\t  of
\npresentation of nomination papers he purported to  surrender
\nthe contract by submitting an application- for\tcancellation
\nto  the Division Engineer, Highways, Cuddalore, whereas\t the
\ncontract  was signed by the Superintending Engineer,  Madras
\nCircle on behalf of the Government of Tamil Nadu, that\tthis
\nletter\tof cancellation was not valid and therefore  there
\nwas  no valid cancellation of the contract.  He.  therefore,
\nspecifically  urged that the election of the 1st  respondent
\nwas  void on that ground.  The 1st respondent on  the  other
\nhand  maintained that the cancellation of the  contract\t was
\nvalid  and there was no subsisting contract on the  date  of
\nfiling\tof  he\tnomination and that the\t contention  of\t the
\npetitioner that his election was void on that ground was not
\nlegally\t  sustainable.\t He  also  contended  that  as\t the
\npetitioner  had not alleged that by reason of such  improper
\nacceptance  the\t result\t of the election, in so\t far  as  it
\nconcerned the 1st respondent, had been materially  affected,
\nthat allegations cannot be inquired into.  He also contended
\nthat  in  any case the result of the election had  not\tbeen
\nmaterially affected.  The learned Judge who dealt with\tthis
\nmatter upheld the contention of the respondent on the ground
\nthat the allegations in the petition had not stated that the
\nresult had been materially affected
\n42<\/span>
\nby the alleged improper reception of the (1st  respondent’s)
\nnomination  papers.   He  was  of  the\topinion\t that\tthis
\nallegation  relating  to  the  improper\t acceptance  of\t the
\nnomination  of the first respondent cannot be  considered  a
\nvalid  ground, which could be gone into in the absence of  a
\nspecific  averment  that the election  had  been  materially
\naffected.   To\tcomplete the narrative it  is  necessary  to
\nmention\t that  the appellant had filed\tan  application\t for
\nsummoning  the necessary documents in order to\tsustain\t his
\ncase.  The documents necessary to be referred to, so far  as
\nthe present appeal is concerned, are only four in number :\n<\/p>\n
\t      1.    Objections to the nomination of the\t 1st
\n\t      respondent (N.  Nachiappan) by A. Ramaswami.\n<\/p><\/blockquote>\n
\t      2.    Documents produced by the 1st respondent
\n\t      (N.   Nachiappan) at the time of the  scrutiny
\n\t      of nomination.\n<\/p><\/blockquote>\n
\t      3.    The\t  signed   agreement   between\t the
\n\t      Superintending   Engineer,  Highways,   Madras
\n\t      Circle  and  N. Nachiappan in respect  of\t the
\n\t      contract\tfor\t    widening  the   existing
\n\t      black   _top   surface   to   22\t ft.\twith
\n\t      Ulundurpet-Salem) Road-Kilometre 74\/2 to 86\/4.\n<\/p><\/blockquote>\n
\t      4.    Proceedings of the Divisional  Engineer,
\n\t      Highways\t and   Rural  Work,   Cuddalore\t  of
\n\t      termination of the contract made by Rec.\t No.
\n\t      8280\/70-B-3 dated 28-1-71.\n<\/p><\/blockquote>\n
The  first two documents were to be summoned to be  produced
\nby  the District Election Officer and the other two  by\t the
\nSuperintending Engineer, Highways, Madras Circle.
\nBefore\tdealing with the question whether the learned  Judge
\nwas right in holding that he could not go into the, question
\nwhether the 1st respondent’s nomination has been  improperly
\naccepted  because  there was no allegation in  the  election
\npetition that the election had been materially affected as a
\nresult\tof  such improper acceptance, we may look  into\t the
\nrelevant   provisions\tof  law.   Under  s.   81   of\t the
\nRepresentation of the People Act, 1951 an election  petition
\ncalling in question any election may be presented on one  or
\nmore of the grounds specified in sub-section (1) of  section
\n100  and section 101.  It is not necessary to refer, to\t the
\nrest of the section.  Under section 83 (1 )(a), in so far as
\nit  is necessary for the purposes of this case, an  election
\npetition  shall contain a concise statement of the  material
\nfacts on which the petitioner relies.  Under section  100(1)
\nif the High Court is of opinion-\n<\/p>\n
(a)  that  on the date of his election a returned  candidate
\nwas not qualified, or was disqualified, to be chosen to fill
\nthe ,eat under the Constitution or this Act….\n<\/p>\n
(b)………………….\n<\/p>\n
(c)………………….\n<\/p>\n
(d)  that  the\tresult\tof the election, in  so\t far  as  it
\nconcerns a returned candidate, has been materially affected\n<\/p>\n
(i) by the improper acceptance of any nomination, or
\n 43<\/span>
\nthe,  High Court shall declare the election of the  returned
\ncandidate to be void.  Therefore, what section 100  requires
\nis that the High Court before it declares the election of  a
\nreturned  candidate  is void should be of opinion  that\t the
\nresult\tof the election in so far as it concerns a  returned
\ncandidate  has\tbeen  materially affected  by  the  improper
\nacceptance  of\tany nomination.\t Under s. 83  all  that\t was
\nnecessary  was a concise statement of the material facts  on
\nwhich  the  petitioner relies.\tThat the appellant  in\tthis
\ncase has done.\tHe has also stated that the election is void
\nbecause\t of the improper acceptance of the 1st\trespondent’s
\nnomination   and  the  facts  given  showed  that  the\t 1st
\nrespondent was suffering from a disqualification which\twill
\nfall under section 9A.\tThat was why it was called  improper
\nacceptance.   We did not consider that in the  circumstances
\nof  this  case it was necessary for the petitioner  to\thave
\nalso  further alleged that the result of the election in  so
\nfar   as  it  concerns\tthe  returned  candidate  has\tbeen
\nmaterially  affected by the improper acceptance of  the\t 1st
\nrespondent’s nomination. , That is the obvious conclusion to
\nbe  drawn  from the circumstances of this case.\t  There\t was
\nonly  one  sea,\t to  be\t filled\t and  there  were  only\t two
\ncontesting  candidates.\t  If  the allegation  that  the\t 1st
\nrespondent’s  nomination  has been  improperly\taccepted  is
\naccepted  the  conclusion  that would follow  is  that\tthe
\nappellant  would  have\tbeen  elected as  he  was  the\tonly
\ncandidate  validly  nominated There can be,  therefore,\t no,
\ndispute\t that  the result of the election’ in so far  as  it
\nconcerns the returned candidate has been materially affected
\nby  the improper acceptance of his nomination  because\tbut-
\nfor such improper acceptance he would not have been able  to
\nstand  for the election or be declared to, be elected.\t The
\npetitioner  had\t also  alleged that the\t election  was\tvoid
\nbecause\t of the improper acceptance of the 1st\trespondent’s
\nnomination.   In  the case of election to  a  single  member
\nconstituency  if there are more than two candidates and\t the
\nnomination  of\tone  of the  defeated  candidates  had\tbeen
\nimproperly  accepted the question might arise as to  whether
\nthe  result  of the election of the returned  candidate\t had
\nbeen  materially  affected by such improper  reception.\t  In
\nsuch it case the question would arise as to what-would\thave
\nhappened  to the votes which had been cast in favour of\t the
\ndefeated  candidate  whose nomination  had  been  improperly
\naccepted if it had not been accepted.  In that case it would
\nbe  necessary  for the person challenging the  election\t not
\nmerely\tto allege but also to prove, that the result of\t the
\nelection  had  been  materially\t affected  by  the  improper
\nacceptance   of\t the  nomination  of  the   other   defeated
\ncandidate.  Unless he succeeds in proving that if the  votes
\ncast  in favour of the candidate whose nomination  had\tbeen
\nimproperly  accepted  would have gone  in  the\tpetitioner’s
\nfavour and he would have got a majority he cannot succeed in
\nhis  election petition.\t Section 100(1) (d) (i)\t deals\twith
\nsuch  a\t contingency.\tIt  is no,  intended  to  provide  a
\nconvenient  technical sell in a case like this\twhere  there
\ncan be no dispute at all about the election being materially
\naffected  by  the  acceptance of  the  improper\t nomination.
\n“Materially  affected” is not a formula that has got  to  be
\nspecified  but\tit  is\tan  essential  requirement  that  is
\ncontemplated in this see-\n<\/p>\n
44<\/span><\/p>\n
tion.\tLaw  does  not contemplate a more  repetition  of  a
\nformula.   The\tlearned\t Judge\thas  failed  to\t notice\t the
\ndistinction  between  a ground on which an election  can  be
\ndeclared  to be void and the allegations that are  necessary
\nin  an election petition in respect of such a  ground.\t The
\npetitioner   had  stated  the  ground  on  which   the\t 1st
\nrespondent’s election should be declared to be void.  He had
\nalso given the material facts as required under s. 83(1)(a).
\nWe  are, therefore, of opinion that the learned Judge  erred
\nin holding that it was not competent for him to go into\t the
\nquestion  whether the 1st respondent’s nomination  had\tbeen
\nimproperly accepted.\n<\/p>\n
One other point which the learned Judge failed to notice  is
\nthat  on the allegations contained in the petition, if\tthey
\nWere  established, the respondent must be deemed  to  suffer
\nthe disqualification under S. 9A of the Act and all that  s.
\n100(1)(a)  requires  is that on the date of his\t election  a
\nreturned candidate was not qualified or was disqualified  to
\nbe  chosen to fill the seat under the Constitution  or\tthis
\nAct.   In  order  to declare his election  void\t it  is\t not
\nnecessary  that the election petition should state that\t the
\nresult of the election was materially effected thereby.\t The
\nquestion of the election being materially affected does\t not
\narise in a case falling under s. 100(1)(a).
\nThough\tit is not necessary to cite any authorities  we\t may
\nrefer  to a few decisions.  In Balakrishna  v.\tFernandez(1)
\nthis Court pointed out that the first sub-section of section
\n100  lays down the grounds for declaring an election  to  be
\nvoid,  that sections 100 and 101 deal with  the\t substantive
\nlaw  on\t the subject of election, that\tthese  two  sections
\ncircumscribe  the  conditions  which  must  lie\t established
\nbefore an election can be declared void or another candidate
\ndeclared elected.  It further observed :\n<\/p>\n
\t      “The heads of substantive rights in s.  100(1)
\n\t      are  laid\t down in two separate  parts  :\t the
\n\t      first  dealing  with situations in  which\t the
\n\t      election\tmust  be declared void on  proof  of
\n\t      certain  facts,  and the second in  which\t the
\n\t      election\tcan  only be declared void  :if\t the
\n\t      result  of  the  election, in  so\t far  as  it
\n\t      concerns\tthe returned candidate, can be\theld
\n\t      to  be  materially affected on proof  of\tsome
\n\t      other  facts in the first part they  are\tthat
\n\t      the    candidate\t  lacked    the\t   necessary
\n\t      qualification\t  or\t  had\t    incurred
\n\t      disqualification.\t These are grounds on  proof
\n\t      of which by evidence, the election can be\t set
\n\t      aside  without  any  further  evidence.\t The
\n\t      second part is conditional that the result  of
\n\t      the  election,  in  so far as  it\t concerns  a
\n\t      returned candidate, was materially affected by
\n\t      the improper acceptance of a nomination.\tThis
\n\t      condition\t has  to  be  established  by\tsome
\n\t      evidence\tdirect\tor circumstantial.   It\t is,
\n\t      therefore,  clear that the substantive  rights
\n\t      to  make an election petition are\t defined  in
\n\t      these  sections and the exercise of the  right
\n\t      to   petition  is\t limited  to   the   grounds
\n\t      specifically mentioned.<\/p><\/blockquote>\n
\t      Having  dealt with the substantive law on\t the
\n\t      subject of election petitions we may now\tturn
\n\t      to   the\t procedural   provisions   in\t the
\n\t      Representation of the People Act.\t Here we,
\n(1)[1969] (3) S.C.R. 603.\n<\/p>\n
 45<\/span><\/p>\n
\t      have to consider sections 81, 83 and 86 of the
\n\t      Act.  The first provides the procedure for the
\n\t      presentation   of\t election  petitions.\t The
\n\t      proviso to sub-section alone is material here.
\n\t      It  provides that an election petition may  be
\n\t      presented\t ‘on  one  or more  of\tthe  grounds
\n\t      specified\t in sub-section (1) of.\t S. 100\t and
\n\t      s.  101.\tThat as we have shown above  creates
\n\t      the,  substantive\t right.\t  Section  83\tthen
\n\t      provides\tthat  the  election  petition\tmust
\n\t      contain  a concise statement of  the  material
\n\t      facts on which the petitioner relies…… The
\n\t      section  is  mandatory and  requires  first  a
\n\t      concise statement of material facts…… What
\n\t      is  the difference between material facts\t and
\n\t      particulars  ? The word ‘material’ shows\tthat
\n\t      the  facts necessary to formulate\t a  complete
\n\t      cause of action must be. stated.\tOmission  of
\n\t      a single material fact leads to an  incomplete
\n\t      cause of action and the statement of claim be-
\n\t      comes bad.  The function of particulars is  to
\n\t      present  as,full\ta picture of  the  cause  of
\n\t      action with such further information in detail
\n\t      as to make the opposite party understand\tthe,
\n\t      case he will have to meet.”\n<\/p>\n
\t      That lays down the proper test.  In Konappa v.
\n\t      Viswanath(1) this Court pointed out that :
\n\t      “Where by an erroneous order of the  Returning
\n\t      Officer  poll  is\t held which,  but  for\tthat
\n\t      order,  was not necessary, the Court would  be
\n\t      justified in declaring those contesting candi-
\n\t      dates elected, who, but for that order,  would
\n\t      have been declared elected.”\n<\/p>\n
It was urged before us by Mr. Natesan that we should  summon
\nthe documents which were only four in number and decide\t the
\ncase ourselves.\t We do not know whether any further material
\nwould  or  would not be necessary to  establish\t the  ground
\nsought\tto be made out by the appellant or whether any\toral
\nevidence would be necessary.  In any case we do not consider
\nit  either necessary or expedient that we should  deal\twith
\nthe matter directly ourselves.\n<\/p>\n
The  appeal  is,  therefore, allowed and the  order  of\t the
\nlearned\t Judge\tis  set\t aside.\t  He  will  now\t proceed  to
\ndetermine  only the question regarding the  disqualification
\nof   the  first\t respondent  and,  therefore,  whether\t the
\nacceptance  of\this  nomination\t was  improper.\t  The  first
\nrespondent will pay the appellant’s costs.\n<\/p>\n
S.C.\t\t\t\t\t   Appeal allowed.\n(1) [1969] (2) S.C.R. 90.\n46<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Durai Muthuswami vs N. Nachiappan & Ors on 23 April, 1973 Equivalent citations: 1973 AIR 1419, 1974 SCR (1) 40 Author: A Alagiriswami Bench: Alagiriswami, A. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-239852","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDurai Muthuswami vs N. 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