KAMALNATH Vs. SUDESH VERMA

JUDGEMENT

(1.) These appeals by special leave are directed against the order dated 21-7-2000 of the High Court of Judicature at Jabalpur in Election Petition No. 3 of 1998 as well as against the order dated 31-1-2001 in the said election petition. The appellant is the successful candidate from Chhindwara Lok Sabha Constituency in the State of Madhya Pradesh. The respondent filed an Election Petition, which was registered as Election Petition No. 3 of 1998 impugning the election of the appellant alleging corrupt practice under S. 123(6) of the Representation of the People Act (hereinafter referred to as "the Act"), inasmuch the appellant is alleged to have incurred or authorised expenditure in contravention of S. 77 of the Act. It may be stated, apart from the aforesaid allegation of corrupt practice, there was no other allegation in the Election Petition. The appellant had won the election by defeating his nearest rival by 1,53,398 votes. In the Election Petition the appellant filed two applications seeking dismissal of the Election Petition on the ground that the said petition does not disclose material facts with regard to alleged corrupt practices, as required under S. 83 of the Act. It was also urged that the accompanying affidavit is too vague and is not in accordance with the proviso to S. 83 of the Act. The appellant also prayed that several paragraphs of the election petition should be deleted as it has no connection with the allegation of corrupt practice within the ambit of S. 123(6). It was also prayed that the Election Petition having not disclosed any triable issue, the same is liable to be dismissed. The learned Judge, who had been appointed as Election Trbunal, by his order dated 21-7-2000 came to hold that the pleadings in paragraphs 3, 4, 5, 9, 15, 16, 17, 18 and 19 are wholly unnecessary and frivolous and deserve to be struck down, and accordingly directed for striking out those paragraphs. But so far as the allegation of corrupt practice on the ground, that the amount spent exceeded the ceiling on election expenses, the learned Judge came to hold that the material facts with regard to the ingredients of the cause of action, for the alleged corrupt practice has been disclosed, and therefore, the Election Petition cannot be dismissed in limine. The appellant thereafter filed yet another application seeking review of the aforesaid order dated 21-7-2000, and that Review Application was rejected by Order dated 31-1-2001, and hence the present appeals.

(2.) Mr. K. K. Venugopal, the learned senior counsel, appearing for the appellant contended, that the validity of Explanation 1, to 77(1) of the Representation of the People Act, 1951 having been up held by this Court in the case of Dr. P. Nalla Thampy Terah vs. Union of India, (1985) Suppl. SCC 189, unless an Election Petition contains averment to the effect that the returned candidate, either has incurred or has authorised expenditure to be incurred by the election agent, more than the ceiling prescribed under the Act, a mere vague allegation will not make an Election Petition maintainable to be tried under S. 123(6) of the Act, and in the case in hand, after striking out of the paragraphs as per the order of the High Court, on the assertions made in the residue of the paragraphs do not make out an allegation of corrupt practice within the ambit of S. 123(6) of the Act, and as such, the Election Petition was liable to be rejected and the High Court committed error in rejecting the said submission of the appellant. Mr. Venugopal further contended, that the allegations of corrupt practice being quasi criminal in nature, the pleadings require a strict examination, and therefore, there should not be any vagueness in the allegations made which a returned candidate would be required to meet. According to Mr. Venugopal, on vague and general allegation without giving any particulars, it is difficult to hold that there exists a triable issue, therefore the High Court committed error in not dismissing the Election Petition. According to Mr. Venugopal the Election Petition cannot be entertained to have a fishing and roving enquiry and, therefore, it is obligatory on the Election Petitioner to give requisite facts, details and particulars of the corrupt practice with exactitude, and in the absence of such particulars the Election Petition must fail at the threshold. Mr. Venugopal further urged that on a true construction of S. 83 of the Act, more particularly, proviso to S. 83(1)(c), the source of information is required to be given in the affidavit and the same not having been furnished there has been an infraction of requirement of law and Election Petition ought to have been rejected on this ground also.

(3.) Mr. Ramajois, learned senior counsel appearing for respondents, on the other hand contended, that the material facts and material particulars are not one and the same thing. Material facts are those primary facts which disclose the cause of action and those primary facts have to be specifically pleaded, and failure to do so will result in rejection of the Election Petition. But if such material facts have been pleaded, then the rest would be a matter for trial and, therefore, in the case in hand, since the Election Petition did contain the material facts alleging that the returned candidate had spent more than the ceiling provided for, the Election Petition could not have been rejected at the threshold, and on the other hand there exists a triable issue which can only be adjudicated after evidence being lead. In this view of the matter, the impugned order of the High Court does not suffer from illegality requiring interference by this Court. In support of his contention reliance is placed on the decision of this Court in V. S. Achuthanandan vs. P. J. Francis and another (1999) 3 SCC 737.