VEJHURANI THAKURDAS JHAMANDAS Vs. SABIR SHAIKH

JUDGEMENT

(1.) THE petitioner contested the General Election to the Maharashtra Legislative Assembly from Ambernath Assembly Constituency. The polling took place on 12th February, 1995; the result were declared on 12th March, 1995 and the respondent was declared elected from the said constituency. It is the case of the petitioner that the respondent has committed several corrupt practices and, therefore, his election is liable to be declared void. The alleged corrupt practices on the part of the respondent are narrated in paragraphs 4 to 15 of the petition. The respondent has filed Chamber Summons No. 150 of 1996 raising preliminary objection to the maintainability of the petition. The respondent contends that the allegation in the petition are vague and they are frivolous and vexatious. It is also contended that the petitioner has not complied with the mandate of section 83 of the Representation of the People Act, 1951 ("the Act", for short ). The respondent prays that the allegations of corrupt practices in paragraphs 4 to 15 should be struck off under Order VI, Rule 16 of C. P. C. and the petition be dismissed under Order VII, Rule 11 of C. P. C. , since, after striking off the pleadings contained in paragraphs 4 to 15, no triable issue remains to be considered.

(2.) UNDER section 83 of the Act, an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies, (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. It is manifest that the election petition shall not only contain material facts but also set forth particulars of corrupt practice. The importance of material facts and the distinction between the material facts and particulars was brought out in the decision of the Supreme Court in (Manubhai Nandlal Amersey v. Popatlal Manilal Joshi) A. I. R. 1969 S. C. 734. Bachawat, J. , speaking for the Court, said that section 83 of the Act was mandatory and particulars of corrupt practice were to be set out full. It was said in that case that no amendment in the shape of particulars of corrupt practice was permissible if the corrupt practice was not previously alleged in the petition

(3.) THE requirements in an election petition as to material facts and the consequences of lack of such allegation of material facts came up for consideration of the Supreme Court in (Samant N. Balakrishnan v. George Fernandes) A. I. R. 1969 S. C. 1201. Hidayatullah, C. J. , speaking for the Court laid down these propositions. First, section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of person with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further prospects of the election are alleged as statements of facts.