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Judgment
K.K. Srivastava, J.—This Election Petition has been filed by an unsuccessful candidate S. Kuljit Singh seeking the setting aside of the election of the respondent Smt. Laxmi Kanta Chawla, the successful candidate returned to the Assembly of Punjab Vidhan Sabha Constituency No. 18, Amritsar Central in the election held on 7.2.1997.
The grounds on which the election of the respondent as member Legislative Assembly of Punjab Vidhan Sabha is sought to be set aside, are that the election Symbol which was alloted to the petitioner initially was "Umbrella", which was changed by the Returning Officer without any notice to the petitioner and instead the symbol of ''Electric Bulb'' was allotted to him and this greatly prejudiced the petitioner inasmuch as he had gone to the voters in canvassing for himself with the Symbol ''Umbrella''. It was urged that wide publicity of the said Symbol was made amongst the electorates. The petitioner had started his election compaign and had addressed various public meetings by putting the banners of his election Symbol of ''Umbrella''. The petitioner got a good response from the electorates who were expected to cast their votes in his favour. It has been averred in the petition that there was a general wave amongst the electorates to cast their votes in favour of the petitioner who had been allotted the aforesaid Symbol of ''Umbrella''. According to the contention of the petitioner, the result of the election was materially affected by the sudden change of Symbol at the time when there was no chance of going to the electorates for canvassing with the changed Symbol of ''Electric Bulb''. Apart from this, the said change of the symbol was done without any prior information/intimation and notice to the petitioner who was not afforded any opportunity of hearing. The action of the Returning Officer in changing the election Symbol violated the principles of natural justice.
The respondent put in appearance and filed written statement wherein preliminary objections were raised regarding the maintainability of the Election Petition. The preliminary objections, which have been raised in the written statement, are as under :
The verification of the Election Petition is not in accordance with Order VI Rule 15 of Code of Civil Procedure (for short to be referred as C.P.C.) inasmuch as the petitioner has verified the contents of Paragraphs 1 to 17, 20, 21, 22 and 24 of the Election Petition as true and correct to both his knowledge and belief. The Election Petition was liable to be dismissed on this infirmity in the verification clause.
Section 83 subsection (2) of the Representation of the People Act, 1951 (for short to be referred as the Act 1951) provides, interalia that any Schedule or Annexure to the Election Petition shall also be signed by the petitioner and verified in the same manner as the Election Petition. The petitioner has not verified the Schedule, and the Annexures enclosed with the Election Petition have not been verified and signed by the petitioner. The omission to sign and verify the Schedule and Annexures to the Election Petition as required under Section 83 subsection (2) of the Act 1951 is sufficient in law to dismiss the Election Petition.
The Election Petition does not disclose any cause of action and the petition is liable to be dismissed on that score.
On these pleadings following preliminary issues were framed :
Whether the verification clause of the Election Petition is defective and not in accordance with the provisions of the Section 83 (1) (c) of the Act read with the Order VI Rule 15, subrule (2) CPC ? If so, its effect ?
What is the effect of the nonsigning and nonverification of the Schedule and Annexures to the petition as required under Section 83(2) of the Act on the maintainability of the Election Petition ?
Whether the Election Petition does not disclose a complete cause of action under Section 100(1)(d)(iv) of the Representation of People Act, 1951 i.e. due to the nondisclosre of the material facts? If so, its effect on the maintainability of the petition ?
I have heard learned counsel for the parties and have carefully perused the pleadings and the records of the case.
Findings on Preliminary Issues.
Preliminary Issue No. 1.
So far as the first preliminary issue is concerned, reference may be made to the verification clause of the Election Petition which reads as under :
"VERIFICATION
Verified that the contents of paras 1 to 17, 20, 21 and 22 to 24 of the election petition are true and correct to my knowledge and belief and those of paras 18, 19 and 23 are true and correct on the basis of the information received from the legal advice of the counsel which are believed to be true and correct. No part of it is false and nothing relevant has been concealed therefrom."
Section 83, subsection (1) (c) provides :
An election petition,
a)..............
b)..............
c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such practice and particulars thereof."
The verification of the pleadings is provided in Order VI Rule 15 C.P.C which may usefully be quoted as under :
"(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings what he verified of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."
The main objection of the respondent is to the verification of the contents of paragraphs 1 to 17, 20, 21 and 24 of the Election Petition as being true and correct to the knowledge and belief of the Election Petitioner. The learned counsel for the respondent urged that the verification of aforesaid paragraphs as being true and correct, has been done both on the basis of the knowledge as well as belief and this kind of verification is not in accordance with law. The petitioner has to verify the contents of each paragraph to be true and correct on the basis of his personal knowledge or his belief based on some source which he has to disclose and about which he has to swear that he believed that information from the source to be true and correct. The verification of the contents of the aforesaid paragraphs from knowledge as well as belief is quite vague and it cannot be said as to which part of the contents of the paragraph has been verified as true and correct on the basis of knowledge and which part thereof has been verified to be true and correct on the basis of belief and the source of that belief has not been disclosed in the verification clause.
The learned counsel for the petitioner, on the other hand, contended that there is nothing wrong with the verification of the contents of the aforesaid paragraphs because the verification has been done on the basis of knowledge which would necessarily mean the knowledge of the petitioner and the same being his personal knowledge, as well as the facts which he believed to be true. Apart from this, he submitted that the Election Petition could not be dismissed on the ground of defective verification.
It will appear from the persual of Order VI Rule 15, subrule (2) C.P.C. quoted above that while verifying the contents of the paragraphs it has to be specifically verified as to what facts are being verified on the basis of own knowledge of the person so verifying and what portion of the contents of the paragraph is being verified by him upon information received and believed to be true.
Order VI, Rule 15, subrule (2) C.P.C. does not envisage verification of the contents of the paragraphs of the pleadings being verified on knowledge as well as belief. The facts cannot be verified to be true and correct on the basis of the own knowledge of the person verifying them and at the same time those very facts be verified as true and correct on the basis of the belief of that very person, either such person has the personal knowledge about the contents of the paragraph or he believes those very contents to be true and correct on the basis of some information which he believes to be true.
Learned counsel for the petitioner submitted that assuming if there is any defect in the verification clause, the same will not be sufficient to throw the Election Petition on that score. He sought support of his arguments from the judgments of the Apex Court reported in F.A. Sapa v. Singora and others, A.I.R. 1991 S.C. 1557 and Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others, A.I.R 1964 S.C. 1545. In the case of F.A. Sapa (supra) the Apex Court held that :
" It must at the outset be realised that Section 86(1) which lays down that the High Court ''shall'' dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 does not in terms refer to Section 83. It would, therefore seem that the legislature did not view the noncompliance of the requirement of Section 83 with same gravity as in case of Section 81, 82, or 117. But it was said that a petition which does not strictly comply with the requirements of the Section 83 cannot be said to an election petition within the contemplation of Section 81 and hence Section 86(1) was clearly attracted. In Murarka Radhey Shyam V. Roop Singh Rathore, (1964) 3 SCR 573 : AIR 1964 SC 1545, one of the defects pointed out was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petitioner did not in so many words state that the advice and information received was believed by him to be true. The Election Tribunal held that this defect was a matter which came within Section 83(1)(c) and the defect could be cured in accordance with the principles of the Code. This court upheld this view in the following words (at p. 1549 of AIR) :
"It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Clause (c) of subsection (1) of S. 83 is fatal to the maintainability of the petition."
It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. As observed earlier since Section 83 is not one of three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Sec. 81."
The case of Murarka Radhey Shyam (supra) has been duly considered and referred to by the Apex Court in the case of F.A Sapa (supra). It is, thus, quite clear that mere defect in the verification of the Election Petition is not fatal to the maintainability of the petition and the petition cannot be thrown out on the ground. It has been categorically held by the Supreme Court in the case of F.A. Sapa (supra) that since Section 83 is not one of three provisions mentioned in Section 86(1) of the Act, ordinarily it cannot be construed as mandatory, unless it is shown to be an integral part of the petition under Section 81.
Learned counsel for the respondent could not cite any authority expressing a contrary view. There is, thus, no merit in the contention of the learned counsel for the respondent and the petition cannot be dismissed on the ground of the verification of the petition being not strictly in accordance with the provisions of Section 81(1)(c) read with Order VI Rule 15, Subrule (2) C.P.C.
Preliminary Issue No. 2.
The Schedule and the Annexures of the Election Petition are required to be signed and verified by the petitioner under Section 83(2) of the Act which reads as under :
" Any Schedule or Annexures to the petition shall also be signed by the petitioner and verified in the manner as the petition."
It is quite clear from the reading of Section 83(2) of the Act that the verification of the Schedule and the Annexures are to be made in the manner as the Petition. It implies that when the petition cannot be dismissed for defect in the verification clause, the Annexures and Schedule to the Election Petition in the absence of the verification and signature of the petitioner cannot lead to the dismissal of the Election Petition. The defective verification of the Election Petition is curable by directing a proper verification in accordance with the provisions of law and as such, the Schedule and Annexures to the petition can also be directed to be properly signed and verified in order to cure the defect and bring the same in accordance with the provisions of Section 83(2) of the Act. This is the position when it is assumed that the Schedule and the Annexures are part of the Election Petition. The learned counsel for the petitioner pointed out that the Annexures and the Schedule have not been referred to in the Election Petition and they are not made part of the Election Petition. On the other hand, learned counsel for the respondent submitted that the Annexures placed in the envelope and form ''B'' and form ''BB'' and the documents filed along with the Election Petition are part or the Election Petition and hence they are the Annexures of the petition requiring signature and proper verification. After carefully considering the rival contentions of the learned counsel for the petitioner and the respondent, I am of the considered view that so far as the Annexures and Schedule are concerned, they are part and parcel of the Election Petition notwithstanding the specific mentioning of the same in the Election Petition and are required to be signed and verified as provided in Section 83(2) of the Act 1951. However, there is no substance in the plea of the respondent that this defect is fatal to the petitioner and the Election Petition is liable to be thrown on that ground. This defect is to be treated at par with the defective verification of the Election Petition itself and as such, it is to be held curable. The second preliminary objection is, thus, without any substance and merit.
Preliminary Issue No. 3
The respondent, who is the returned candidate from Amritsar Central Assembly Constituency, has in para 4 of her written statement averred :
"4 That the election petition is quite vague and does not furnish any cause of action. In whole of the election petition it has nowhere been averred as to what were the symbols sought and mentioned by the election petitioner in his nomination paper. Hence the election petition does not furnish any cause of action."
In para 5 of the written statement it was mentioned :
"That the election petitioner has not approached this Hon''ble High Court with clean hands and has intentionally and deliberately concealed number of material facts from this Hon''ble High Court and for that matter he deserves to be strictly dealt with in accordance with the law by this Hon''ble Court. The petitioner has filed his nomination paper as an independent candidate. He has sought/chosen the following symbols in order of preference : (i) Bulb, (ii) Umbrella and (iii) Kite. A certified copy of nomination paper filed by the petitioner is annexed as Annexure R1 for the kind consideration of this Hon''ble Court."
In the election petition, the petitioner pleaded the fact of allotment of the election symbol to him by the Returning Officer in these words :
"............... and the petitioner was given the symbol as Umbrella (Chhatta). The specimen of the Symbol allotted to the petitioner was given to the petitioner by the Returning Officer and the original specimen of the Symbol was also issued to the petitioner."
In para 8 of the election petition it was averred :
" That the signature of the petitioner was obtained for the allotment of the Symbol by the Returning Officer in the Form/Register prescribed for that purpose and kept by the Returning Officer in his office. The petitioner was informed by the Returning Officer for this election Symbol used for the purpose of campaigning and to contest the election."
Thereafter, the petitioner made averments regarding the printing of hand bills for his election as an independent candidate with the election symbol of Umbrella and about his going to the voters for canvassing for his candidature by displaying the Symbol of Umbrella alloted to him. In para 14 of the election petition it was alleged that the petitioner started his election campaign and he has addressed various public meetings by putting the banners of Umbrella (Chhatta) as his election symbol and almost all the electorates gave very good response to cast their votes in favour of the petitioner. It is a general wave to cast the votes in favour of the Umbrella and to make a stamp on the Umbrella on the day of polling in this constituency. In para 16 of the election petition it was alleged that the election Symbol Umbrella, alloted to him, was suddenly changed to the detriment of the petitioner who lost the election on that account. The precise averments made in this regard in para 16 are as under :
"That the Returning Officer without any notice to the petitioner changed the election symbol from Umbrella to Electric Bulb and there was no time with the petitioner to make the publicity. Thus, the petitioner lost the election and all the voters of the petitioner had cast the votes in favour of the respondent or to some extent to other candidates who went to cast the votes. Many of the voters did not cast the votes just as a protest for change of the symbol without prior information to the petitioner and thus the voters were not aware regarding the change of symbol."
In para 17 the petitioner alleged that the change of symbol allotted to him was all of a sudden and without any prior information/notice and it materially affected the result of the petitioner and the respondent. The petitioner thereafter referred to the provisions of the Representation of People Act and Conduct of Election Rules, 1961 and alleged in para 20 that :
" the election Symbol is a valuable right accrued to the petitioner from the day of the allotment. This symbol cannot under any circumstances be changed without any notice to the petitioner. There is no direction issued by the Election Commission for the change of the election symbol, thus to make a change of the election symbol at the back of the petitioner as well as without any direction issued by the Election Commission the same is violation of the Statutory Provisions of law, hence this election petition."
It will appear from the perusal of the averments made in the election petition that the petitioner set up a definite case that he contested the election as a member to the State Election Legislative Assembly as an independent candidate from Amritsar Central Assembly Constituency No. 18 and he was alloted symbol of Umbrella (Chhatta) which was suddenly changed and replaced by the another symbol ''Electric Bulb'' by the Returning Officer without any prior notice/information to the petitioner. The petitioner did not make an averment in his election petition, as contended by the learned counsel for the respondent, about his choice of the election Symbol as filled by him in the nomination paper. The order of the preference given by the petitioner in his nomination paper was not at all mentioned in the election petition. According to the averments made in the written statement the petitioner had given his option of symbols in the following order of preference :
(i) Bulb.
(ii) Umbrella.
(iii) Kite.
This fact will be abundantly clear from the certified copy of the nomination paper Annexure R1 filed along with the written statement. This certified copy of the nomination paper of the petitioner shows that in para III of the nomination paper he gave the Symbols chosen by him in order of preference. The order of the preference has already been mentioned and according to it the first preference indicated by the petitioner was Symbol of Bulb, whereas Umbrella was his second preference and the last preference was that of Kite.
The petitioner filed his replication regarding the averments made in the written statement filed by the respondent wherein in reply to para 5 of the preliminary objections he made the following submissions :
"In reply to para No. 5 of preliminary objection it is submitted that it is correct that three symbols were chosen by the petitioner and mentioned in the nomination paper, however, only the Umbrella was alloted to the petitioner."
Learned counsel for the respondent contented that this was a material fact to be averred in the election petition but the petitioner did not allege the same and made a reference of the allotment of the election Symbol of Umbrella to him. The learned counsel argued that the nondisclosure of even a single material fact in the election petition is fatal and the election petition is liable to be dismissed on that score on the ground that the complete cause of the action had not been disclosed as required by Section 83(1)(a) of the Representation of the People Act 1951 and under Section 100(1)(d)(iv) of the said Act. The respondent made a specific averment in para 6 of the preliminary objections as under :
"..... Immediately after the expiry of the period for the withdrawal of the candidates, the list of contesting candidates in Form 7A along with the Symbol allotted was published on 24.1.1997. The name of the petitioner Shri Kuljit Singh appears at serial number 8 in the said list (Form7A) and the Symbol allotted to the petitioner was shown as ''Bulb'' as applied at option No. 1 in order of preference. Form No. 7A was published immediately after the allotment of Symbols after 3.00 P.M. on 24.1.97 in three languages i.e. English, Punjabi and Hindi and was despatched to the Election Commission of India and the District Election Officer on 24.1.97 itself. On 24.1.97 itself copies of Form 7A were also put on the notice board for the information of the general public outside of the office of the Returning Officer, Central Assembly Constituency which shows that the election symbol ''Bulb'' was allotted to the petitioner Shri Kuljit Singh.
The petitioner was supplied with the specimen of the Symbol ''Bulb'' by the Returning Officer and the petitioner had acknowledged receipt of the election Symbol ''Bulb'' under his own signatures and was supplied a list of contesting candidates in Form 7A which shows that the Bulb was the election symbol allotted to the petitioner."
The reply to para 6 of the written statement as given in replication is as under :
"In reply to this para it is submitted that the petitioner is not aware of forwarding any form ''7A'' to the Election Commission of India. It is denied that Form 7A was published on 24.1.97. No copy of the same was even supplied to the petitioner nor the same was placed on any notice Board. It is absolutely wrong that the petitioner was allotted/applied the symbol Bulb by the Election Commission. The video film was prepared by the Government of Symbol which will show clearly which symbol was allotted to the petitioner. The symbol Bulb was never alloted to the petitioner."
The reply of the petitioner will go to show that he was not aware of the preparation of Form 7A and denied that Form 7A was published on 24.1.1997. He also denied the fact that the copy of Form 7A was supplied to the petitioner and one such copy was placed on the notice board. On the facts he denied the allotment of symbol ''Bulb'' in the first instance by the Election Commission. He has made reference to the preparation of a video film by the Government of the Symbol which will show clearly the symbol allotted to him.
Section 83 subsection (1)(a) of the Act 1951 provides : an election petition shall contain a concise statement of the material facts on which the petitioner relies.
Learned counsel for the respondent contented that in the instant case the petitioner has not disclosed all the material facts on which he placed reliance. He pointed out that the petitioner did not allege in the petition that in the nomination paper he had clearly given the choice of Symbols to be allotted to him in order of the following preference :
i) Bulb.
ii) Umbrella.
iii) Kite.
Apart from it, there is no averment made in the petition that he was denied his first preference in the choice of Symbols by the Returning Officer and instead he was allotted his second preference of the symbol ''Umbrella''.
The learned counsel for the respondent referred to Rule 10 of the Rules 1961 which deals with the preparation of list of contesting candidates. It will be appropriate to refer to the various subrules of Rule 10 which reads as under :
"10. Preparation of list of contesting candidates :
(1) The list of contesting candidates referred to in subsection (1) of Section 38 shall be in Form 7A or Form 7B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct.
** ** ** ** **
(3) If the list is prepared in more languages than one, the names of the candidates therein shall be arranged alphabetically according to the script of such one of those languages as the Election Commission may direct.
(4) At an election in a parlimentary or assembly constituency, where a poll become necessary, the returning officer shall consider the choice of the symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission,
a) allot a different symbol to each contesting candidates in conformity, as far as practicable, with his choice, and.
b) If more contesting candidates than one have indicated their preference for the symbol, decide by lot to which of such candidates the symbol will be allotted.
(5) The allotment by the returning officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.
(6) Every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer."
Form 7A prescribes the following proforma :
Form 7A
(See rule 10(1))
List of Contesting Candidates
Election to the House of the People/Legislative Assembly from the ..............
Serial Number
Name of Candidate
Address of candidate
Party affiliation
Symbol allotted
1.
2.
3.
4.
1.
2.
3.
4.
etc.
Place.......
Date......
Returning Officer.
Referring to the provisions of Election Symbols (Reservation and Allotment) Order, 1968 the learned Counsel for the respondent relied on para 12 subparas (2) and (3) regarding the allotment of free symbol to the candidates contesting the election.
Para 12, subpara (2) provides :
(2) Where any free symbol has been chosen by only one candidate at such election, the returning officer shall allot that symbol to that candidate and to no one else.
(3) Where the same free symbol has been chosen by several candidates at such election, then
(a) if of those several candidates only one is a candidate set up by an unrecognized political party, and all the rest are independent candidates, the Returning Officer shall allot that free symbol to the candidate set up by unrecognized political party and to no one else, and if of those several candidates two or more are set up by different unrecognised political parties and the rest are independent candidates, the returning officer shall decide by lot to which of the two or more candidates set up by the different unrecognised political parties that free symbol shall be allotted and allot that free symbol to the candidate on whom the lot falls and to no one else :
(b) if of those several candidates no one is set up by any unrecognised political party but all are independent candidates and one of the independent candidates is, or was immediately before such election, a sitting member of the House of the People. or as the case may be, of the Legislative Assembly, and was allotted that free symbol at the previous election when he was chosen as such member, the returning officer shall allot that free symbol to that candidate and to no one else; and
(c) if of those several candidates being all independent candidates no one is or was a sitting member as aforesaid, the returning officer shall decide by lot to which of those independent candidates that free symbol shall be allotted and allot that free symbol to the candidate on whom the lot falls and to no one else :"
After referring to the aforesaid provisions of the Conduct of the Election Rules, 1961 and Election Symbols (Reservation and Allotment) Order, 1968, the learned counsel for the respondent submitted that the free symbol of ''Bulb'' was shown to be the first preference in the nomination paper filed by the petitioner and if no other candidate had given the first preference of that free symbol of ''Bulb'' in his nomination paper then para 12 subpara (2) of the Elections Symbols Order, 1968 made it obligatory on the Returning Officer to allot that symbol to the petitioner and none else. The petitioner was, therefore, required to make an averment in his petition that he had shown the first preference of the free symbol of ''Electric Bulb'' in his nomination paper and that some other candidate or candidates had also given their choice of the said free symbol in their preference. The Returning Officer had proceeded under para 12 subpara (3) of the Election Symbols Order, 1968 which required the draw of lots qua that symbol. If no other candidate in the election had given a preference for the free Symbol of ''Bulb'' which had been given as the first preference by the petitioner in the nomination paper then as referred to above, that symbol was to be allotted to the petitioner by the Returning Officer under para 12, subpara (2) of the Election Symbol Order, 1968. The argument advanced by the learned counsel for the respondent was that these material facts which constituted the complete cause of the action were not averred in the election petition. Apart from it, the petitioner did not make averments in his petition as to under what circumstances the second preference of ''Umbrella'' as the free symbol was allotted to the petitioner by the Returning Officer and why his first preference of symbol of ''Bulb'' was denied him. The petitioner has not made any averment in the petition about the receipt of form 7A. Rule 11, subrule (2) of the Conduct of the Election Rules, 1961 provides that if a poll becomes necessary under Section 53(1) of the Representation of People Act, the Returning Officer shall supply a copy of the list of contesting candidates to each such candidate or his agent, and then shall also publish the list in the official Gazette. The provisions of Rule 11 subrule (2) aforesaid are mandatory in nature. The list to be prepared in Form 7A contains column No. 5 which deals with the symbol alloted to each candidate. This list of the conttesting candidates in Form 7A, under the provisions of Rules 10 and 11 of the Conduct of Elections Rules, 1961 has to be given to each contesting candidate. The petitioner would also have received the copy of the list of the candidates in Form 7A about which he has made no mention in the election petition and has not even enclosed it or its copy with the petition. The list in Form 7A would have disclosed the symbol allotted by the Returning Officer to the petitioner. The respondent, on the other hand, made a specific averment in the written statement that the symbol of Bulb was allotted to the petitioner by the Returning Officer.
In the case of Roop Lal Sathi v. Nachhattar Singh, A.I.R. 1982 Supreme Court 1559, the Supreme Court considered the distinction between the two expressions "material facts" and " particulars". While pointing out the distinction between "material facts" and "particulars", the Apex Court observed in para 26 as under :
" There is distinction between "material facts" and "particulars". The word "material facts" show 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 or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought out by Bruce v. Odhams Press Ltd., (1936) 1 KB 697 in the following passage.
The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is ommitted, the statement of claim is bad : it is "demurrable" in the old phraseology, and in the new, is liable to be "struck out" under order XXV, Rule 4 : See Philipps, (1878)4 QBD 127 or "a further and better statement of claim may be ordered under Order XIX, Rule 7.
The function of "particulars" under R. 6 is quite different. They are not to be used in order to fill material gaps in a demurraable statement of claim gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff''s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff''s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and enable him to prepare for trial.''
The dictum of Scott, L.J. in Bruce''s case. sapra has been quoted with approval by this court in Samant N. Balakrishan v. George Fernandez, (1969) 3 SCR 603 : AIR 1969 SC 1201 and while observing that the requirments of Section 83 are mandatory, the distinction between the material facts and particulars was brought out in the following terms (at page 1212 of AIR) :
''The word "material" shows that the facts necessary to formulate a complete cause of action must be started. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes 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."
Thus, the word "material" in material facts under Section 83 of the Act means facts necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement or plaint is bad; it is liable to be struck out. The function of "particulars" is quite different, the use of particulars is intended to meet a further and quite separate requirement of pleading imposed in fairness and justice to the returned candidate. Their function is to fill in the picture of the election petitioner''s cause of action with information sufficiently detailed to put the returned candidate on his guard as to the case he has to meet and to enable him to prepare for trial in a case where his election is challenged on the ground of any corrupt practice."
In the case of Hardwari Lal v. Kanwal Singh, A.I.R. 1972 S.C. 515 the allegations of the corrupt practice were held to be lacking in material facts and full necessary particulars. The Apex Court held that the election petition which merely alleged corrupt practice against successful candidate "of obtaining and procuring or attempting to obtain and procure the assistance of certain named Government servants for the furtherance of the prospects of his election" by writing letters under his own signature without giving the material facts and particulars as to the nature of assistance, the time and place where it was sought from each of the persons mentioned, did not furnish any cause of action and the petition was dismissed on that ground.
In the case of Azhar Hussain v. Rajiv Gandhi, A.I.R. 1986 Supreme Court 1253 it was held that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. The following observations in this regard may usefully be quoted. Para 11 is reproduced as under :
"In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This court in Samant''s case, (1969) 3 SCC 238 : AIR 1969 SC 1201, has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to corrupt practice is not an election petition at all. So also in Udav Singh''s case (1977) 1 SCC 511 : AIR 1977 SC 744, the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail."
In the case of Subhash Desai v. Sharad J. Rao and others, A.I.R. 1994 Supreme Court 2277, the Supreme Court while considering the scope and object of Section 83 of the Act relating to the omission to state material facts or giving full particulars regarding corrupt practice in the election petition held in para 11 as under :
"Section 86 vests power in the High Court to dismiss an election petition which has not been properly presented as required by Section 81; or where there has been noncompliance of S. 82 i.e. nonjoinder of the necessary parties to the election petition; or for noncompliance of Section 117 i.e. nondeposit of the required amount as security for the costs of the election petition. Section 86 does not contemplate dismissal of the election petition for noncompliance of the requirements of Section 83 of the Act. But Section 83 enjoins that an election petition shall contain concise statement of material facts, shall set forth full particulars of any corrupt practice that the petitioner alleges, which should be verified and supported by affidavit, so far the allegations of corrupt practices are concerned. This provision is not only procedural, but has an object behind it; so that a person declared to have been elected is not dragged to court to defend and support the validity of his election, on allegations of corrupt practice which are not precise and details whereof have not been supported by a proper affidavit. Apart from that, unless the material facts and full particulars of the corrupt practices are set forth properly in the election petition, the person whose election is challenged is bound to be prejudiced in defending himself of the charges, which have been levelled against him. In view of the repeated pronouncements of this Court, that the charge of corrupt practice is quasicriminal in nature, the person challenging an election on ground of corrupt practice, cannot take liberty of making any vague or reckless allegations, without taking the responsibility about the correctness thereof. Before the Court proceeds to investigate such allegations, the Court must be satisfied, that the material facts have been stated along with the full particulars of the corrupt practice, alleged by the petitioner, which have been duly supported by an affidavit. In cases where the Court finds that niether facts have been stated, nor full particulars of the corrupt practice, as required by Section 83 have been furnished in the election petition, the election petition can be dismissed, not under Section 86, but under the provisions of the Code of Civil Procedure, which are applicable, read with Section 83(1) of the Act, saying that it does not disclose a cause of action. This aspect has been examined by this Court in detail in the case of Azhar Hussain V. Rajiv Gandhi, (supra); Hardwari Lal v. Kanwal Singh, 1972(2) SCR 742 : AIR 1972 SC 515."
In view of the settled position of law regarding the effect of the omission to state material facts in the election petition, the instant case also suffers from the vice of omission to state material facts constituting complete cause of action as has already been discussed above.
The grounds for declaring election void are set out in Section 100 of the Act 1951. In the instant case, the provisions of the Constitution or of the this Act or of any rules or orders made under this Act.
Learned counsel for the petitioner has placed reliance on the case of Roop Lal Sathi (supra). The facts of the case are entirely different from the averments made in this petition. In the case of Roop Lal Sathi (supra) the returned candidate Nachhattar Singh Gill was also a candidate of the Congress Party, whereas the Congress Party had set up another candidate named Jagmohan Singh. Since the Congress Party intimated to the Returning Officer that Jagmohan Singh was its official candidate and the party''s reserved election symbol of ''Hand'' was allotted to Shri Jagmohan Singh. Nachhattar Singh Gill was allotted free symbol of ''Bow and Arrow''. Subsequently, after the date of withdrawal Nachhattar Singh approached the Congress Party and he succeeded in getting himself selected as the official candidate of the Congress Party. The Election Commission at the instance of the Congress Party directed the Returning Officer to allot the Party''s reserved election symbol of ''hand'' to Shri Nachhattar Singh Gill. Sh. Jagmohan Singh, who had earlier been set up as the official candidate of the Congress Party, also decided to contest the election as an independent candidate and he was given the free election symbol of ''Bow and Arrow'' which had earlier been allotted to Nachhattar Singh Gill. In the elections Nachhattar Singh Gill secured 22460 votes, whereas Jagmohan Singh secured only 242 votes on the free election symbol of ''Bow and Arrow''. The petitioner Roop Lal Sathi had contested the election as a candidate of the Lok Dal Party and he had secured 16686 votes. Roop Lal Sathi made an averment in the election petition that the result of the election petition insofar as Nachhattar Singh Gill, the returned candidate is concerned, was materially affected by the change of his election Symbol from ''Bow and Arrow'' to the Congress Party''s reserved election Symbol of ''Hand'' and this change had taken place after the date of withdrawal of the candidature. The contention of the petitioner Roop Lal Sathi was that under the provisions of law the election Symbol could not be changed insofar as Nachhattar Singh Gill is concerned and it should be assumed that he contested the election on the original election Symbol of ''Bow and Arrow'' which was subsequently alloted to Jagmohan Singh and who secured only 242 votes. The contention thus was that it should be taken that had Nachhattar Singh Gill contested the election with the election Symbol of ''Bow and Arrow'' he would have secured only 242 votes and, therefore, the result of election in so far as the returned candidate was concerned, was materially affected. The facts of the instant case as noticed above are clearly distinguishable inasmuch as in the instant case there has been no change in election Symbol of the respondent, the returned candidate. Thus, the case of Roop Lal Sathi (supra) is not at all applicable to the facts of the instant case.
In view of the foregoing discussion, the petitioner has prima facie failed to show from the averments of the material facts in the election petition that there was a complete cause of action for getting the election of the respondent declared as void under Section 100 (1)(d)(iv) of the Act 1951. There is, thus, considerable force in the contention of the learned counsel for the respondent that the election petition does not disclose complete cause of action in view of the nonstatement of the material facts and the petition deserves dismissal under Order 7 Rule 11 of Code of Civil Procedure. Preliminary issue No. 3 is accordingly decided in favour of the respondent.
In view of the findings recorded on preliminary issue No. 3, the election petition deserves to be dismissed on the ground that it does not disclose complete cause of action and it is dismissed accordingly.