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TMI Blog2009 (8) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... al (respondent No. 2 in the election petition) set up by the Bharatiya Janata Party secured only 3782 votes and the respondent (election petitioner) polled only 275 votes and forfeited his deposits. In the election petition before the High Court, a prayer has been made to declare the election of the appellant herein as null and void on ground of corrupt practices in which the appellant indulged during the elections. The allegations in the petition are as under: i) The returned candidate with an intent to secure the votes of the voters of his constituency got 13 bore wells constructed at his own cost in the seven villages of the said constituency; ii) The returned candidate had also provided ambulances to the villages namely Collem, Sanvordem, Mollem, Dharbandora and Khirpal Dabhal as a part of his action in luring voters to vote in his favour. 4. It has also been alleged that the appellant indulged in the abovementioned corrupt practices and incurred election expenditure in contravention of Section 77 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") thereby crossing the limit of ₹ 5,00,000/- prescribed under the Act and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sought to be drawn and averment made to the effect that it is obvious that the cost of the said wells and the other wells were borne by the returned candidate through his business concern, namely, Salgaoncar Mining Industries. 9. The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading on the material facts whether any water drawing equipment was installed in the said bore holes so dug and that such bore holes became water bore wells and that the water could be drawn from them. Neither any facts have been pleaded nor particulars given to the effect of how and in what manner the voters were influenced in favour of the appellant so as to cast votes in his favour. No particulars of such voters have been given in the election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice the election has been vitiated in a manner that but for such bore holes not being dug the appellant would not have been returned as a winning candidate and either respondent herein or respondent No. 2 of the election petition could have been returned as a winning candidate. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h service even if not admitted but proved to be true that could have influenced the election so as to change its outcome. 14. There are absolutely no averments to the effect that these ambulances were deployed at which specific place, at which specific time and for the benefit of whom and whether at the instance or with knowledge of the appellant. As such, the said pleading is incapable of passing the test as laid in the Azhar Hussain's case (supra) or such facts as are pleaded in the petition are capable of being later on amplified in view of the test laid down in H.D. Revanna's case (supra) so as to arrive at a conclusion that a triable case is made out. 15. The third allegation pertains to the election expenses incurred by the appellant on the basis that amount spent on digging of bores holes as well as the cost of 5 ambulances deployed for discharge of statutory requirements for carrying out mining operations by a company ought to be calculated towards the election expenses incurred by the appellant and, as such, devoid of any merit in view of the insufficiency of pleadings in terms of `material facts' with respect to the two main allegations of corrupt practices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owned by Tejaswini Bore Wells which were being operated at Ambeudok. There is, therefore, no concrete evidence that the boreholes drilled were bore wells to establish the flow of water from the ground table to surface ground. Similarly, the respondent has miserably failed to give particulars as to which villages did not have ambulances and what was the number of voters in the said villages. The respondent has failed to give particulars regarding parking of the ambulances i.e. where these ambulances were parked; in which villages they were parked; whether there was any driver to drive the said ambulances and as to where they were parked. Similarly, the respondent failed to give particulars regarding the bore wells whose cost as alleged amounts to ₹ 6,38,557/-. Similarly, expenditure of ₹ 12,50,000/- has been alleged to have been made for the purchase of ambulances. The particulars have not been provided. It is not clear as to how the respondent has come to the figure of ₹ 5,00,000/- which according to him has been spent by the appellant. He did not give any particulars regarding either of the bore wells or the ambulances. 21. `The appellant denied crossing the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv Gandhi (1987) Supp. SCC 93. According to the appellant, the High Court erroneously distinguished this case. The impugned judgment of the High Court is neither in consonance with the provisions of the Act nor according to the settled legal position as has been crystallized in a number of cases by this Court. 26. Being aggrieved by the impugned judgment, the appellant has preferred this appeal. 27. In this election petition, respondent No. 1 has challenged appellant's election primarily on the ground of corrupt practices, alleging that the appellant dug bore wells in the constituency and provided ambulances after the election notification was issued in order to lure the voters from the constituency or induce them to vote for the appellant. According to the appellant, the aforesaid allegations do not even on their face value constitute corrupt practices within the meaning of Section 100 or Section 123 of the Act. The Act postulates or contemplates bribery to mean any gift, offer or promise by a candidate of any gratification with the object, directly or indirectly of inducing any elector in order to make him vote for him. 28. For reference, Section 100 and Section 123 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any person whomsoever, with the objects, directly or indirectly of inducing-- (a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to- (i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-- (a) by a person for standing or not standing as, or for [withdrawing or not withdrawing] from being, a candidate; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. 29. The appellant submitted that corrupt practices pleaded by respondent No. 1 are limited to digging of 13 bore wells in villages falling under the constituency in question after notification of holding of election was issued. The basis for this allegation that the mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that to an extent that would have influenced the outcome of the election. 37. The appellant also submitted that there are no averments with regard to such ambulances being specifically deployed for the benefit of any elector in the constituency. 38. The appellant submitted that any company operating mines on large scale with heavy machinery is under an obligatory duty to maintain safety of the mines and is, as such, statutorily required to provide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons working in the mines. The various mines of Salgaoncar Mining Industries are spread over large areas falling in the constituency. 39. According to the appellant there is no material fact in the pleading of the election petition to the effect regarding the deployment of such ambulances at which specific places at which specific time and for the benefit of whom and whether that was done at the behest and influence of the appellant. 40. According to the appellant, the third allegation pertains to the election expenses incurred by the appellant on the basis of that amount spent on digging of bore holes as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or 'a further and better statement of claim' may be ordered under Rule 7. 45. In Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, it has been stated: 38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely, either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the election petition was comprehensively dealt with by this Court in Azhar Hussain's case (supra). The court observed that it is not disputed that the Code of Civil Procedure applies to the trial of an election petition by virtue of Section 87 of the Representation of the People Act, 1950. Section 87(1) and Section 87(2) of the Act apply to the election petition. Section 87(1) of the Act reads as under: 87. Procedure before the High Court - (1) Subject to the provisions of this Act and of any rules made thereunder, 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 (5 of 1908) to the trial of the suits ; Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. (2) X X X 51. In this view of the matter, the court trying the election p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore fail. 55. In V. Narayanaswamy v. C.P. Thirunavukkarasu (2000) 2 SCC 294, this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts. 56. In L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (dead) by LRs and Ors. (1999) 1 SCC 666, this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and observed as under: 11. 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 an appropriate amendment.... 57. In Udhav Singh's case (supra), this Court observed as under: 41. Like the Code of Civil Procedure, this section also envisages a distinction between "material facts" and &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 51. A distinction between "material facts" and "particulars", however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise. 52. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. 65. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. 66. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election-petitioner (respondent herein) and the election petition is lia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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