DURAI MUTHUSWAMI Vs. N NACHIAPPAN

JUDGEMENT

(1.) This appeal arises out of the election held to fill up 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.

(2.) Before the Returning Officer another candidate by the name Ramaswami had represented 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 contention 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 black-top the Ulundurpet-Salem road between 74 km and 86 km at an estimated cost of Rs. 2 1akhs, 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 the 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 allegation cannot he 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 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 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:

(3.) 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 Section 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 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 -