Rajkumar Imo Singh vs Dr. Khwairkakpam Loken Singh & Ors.

Heard Shri A.C. Borbora and Shri Kamal Agarwal, the learned Senior Advocates assisted by Shri M. Gunodhor Singh and Ms. Reeta Borbora, the learned advocates appearing for the respondent/ petitioner and Shri H.S. Paonam, the learned Senior Advocate assisted by Shri S. Gunabanta, the learned advocate appearing for the applicant/ respondent No.1.

In this election petition, the result of an election is under challenge with the prayer for passing an order to set aside the election of the applicant/ respondent No.1 to the Manipur Legislative Assembly from the Sagolband constituency after declaring it as illegal and void and to declare the respondent/ petitioner to be elected from the said constituency on receipt of majority of the valid votes. One more prayer has been added in the petition praying that he may be allowed and/or a necessary order may be passed directing the discovery and inspection of the documents mentioned at Para 34 of the petition and any other documents which are in the custody, possession and power of the Returning Officer.

1. The facts of the case as narrated in the election petition are that the respondent/ petitioner is one of the candidates for being elected as a member of the Manipur Legislative Assembly from the Sagolband constituency. The Government of Manipur issued a notification dated 07-02-2017 under sub-section (2) of Section 15 of the Representation of People Act, 1951 (hereinafter referred to as ''the Act'') calling upon all the Assembly Constituencies in the State to elect members for the purpose of constituting a new Legislative Assembly. The poll scheduled earlier came to be changed due to certain difficulties vide Corrigendum dated 04-01-2017 issued by the Chief Electoral Officer, Manipur. The respondent/ petitioner submitted his nomination paper as a candidate of the Bhartiya Janata Party (BJP) under the symbol of Lotus and after his nomination being found to be valid, he contested the election held on 04-03-2017 and for the said election, the respondent/ petitioner appointed Shri K. Umakanta Singh as his election agent and Shri Haorongbam Meghachandra as one of his counting agents. As per the polling schedule, the polling took place on 04-03-2017 in respect of the said constituency and after having concluded the counting of votes, the applicant/ respondent No.1 was declared elected as a member of the Manipur Legislative Assembly from the said constituency. The difference of votes between the respondent/ petitioner and the applicant/ respondent No.1 was 19 (nineteen) only. Out of the total votes of 19,283, the respondent/ petitioner received 9,066 votes recorded through EVM while that of the applicant/ respondent No.1 was 9,056 votes with a difference of 10 votes. Out of the total 298 postal ballots, the applicant/ respondent No.1 polled 155 votes by postal ballots while that of the respondent/ petitioner was 126 with the result that the applicant/ respondent No.1 won the election by overall margin of 19 votes over the respondent/ petitioner. 3.2. Being aggrieved by the result of the said election, the instant election petition has been filed by the respondent/ petitioner under Section 100(1)(d)(iii) and (iv) of the Representation of People Act, 1951 and that too, in relation to the vote polled by postal ballots that the result of the election has been materially affected:- (a) by the improper receipt, refusal and rejection of any votes or the receipt of any vote which is void; and (b) by non-compliance of the provision of the Representation of People Act, 1951 and rules and order made thereunder including the guidelines/ instructions/ orders/ directions issued by the Election Commission of India.

On 24-04-2017 when the election petition was listed for consideration, this court issued notice to the respondents therein and despite notice being duly served upon the applicant/ respondent No.1 as is evident from the order dated 09-06-2017, no written statement has so far been filed by him. However, the instant application being MC (El. Petn.) No. 9 of 2017 has been field by him praying for a relief from this court to file a detailed written statement as and when necessary. By the said application, an objection as regards the maintainability of the election petition has been raised on the inter-alia grounds that it has failed to disclose the cause of action and moreover, the provisions of Section 84 and other provisions of the Act, 1951 have not been complied with. Para 2 to 7 of the said application which are relevant for the purpose of deciding the preliminary issue, are given as under:- "2. That, it is stated that the election petition has been presented on the ground as contemplated under section 100(1)(d)(iii) & (iv) of Representation of People''s Act, 1951 alleging improper receipt of postal votes, refusal or rejection of postal votes without any prima facie material evidence/documents for such improper receipts of the post ballots in as much as the election petitioner has not named any election personnel/postal vote/person except his election agent for the alleged improper receipts of the postal ballots and hence, the election petitioner has failed to disclose the actual cause of action against the present applicant/respondent therein thereby warranting outright rejection at the threshold.

That it is stated that it is equally admitted by the election petitioner/ his agent as well as applicant/hi agent that at the time of counting of votes there were of 298 postal votes which were received by the Election authority till the last date of receipt of postal ballots and same was not protested/objected by anyone at the time of counting of the postal ballots and also after declaration of the election results and after the counting of postal ballots/ votes, it was found that 155 votes were in favour of the applicant/ respondent no.1, 126 votes were in favour of the election petitioner, 2 were in favour of the respondent No.2 and only 1 in favour of respondent No.3 were as fourteen votes were found to be invited counting of the postal ballot. Consequently, after the completion of the counting of votes including the EVMs of all polling stations and postal votes, the applicant having received the highest number of votes and was declared elected from 11-Sagolband Assembly Constituency. Hence, the allegation of the defeated candidate/ the election petitioner out of heart burning and confusion have filed the present petition without any basis for disclosing the actual cause of action and therefore, the present election petition is liable to rejected in terms of Order VII Rule 11 for non-disclosure of cause of action.

That, it is stated the election petition have reproduced and stated a number of provisions of the Representation of People''s Act, 1951, the Conduct of Election Rules, 1961 as well as other notification/ guidelines/ circular, however, have neither specifically pleaded any kind of the violation and non-compliance of the aforesaid Act, Rules and guidelines nor have placed on record of any such indication/ evidence about the violation of the Act/ Rules and Guidelines thus, relevantly it would be irrelevant for consideration of the declaring the election of the applicant/ respondent No. 1 as void under section 100(1)(d)(iii)& (iv) and hence, the provision as enunciated by the election petitioner would not in any manner attract for consideration as to whether a cause of action for declaring the election of the applicant as void.

That, it is stated that it is stated that it is provided under section 84 of the Representation of People''s Act, 1951 that an election petitioner may sought for the following relief as under:

(i) Declaration of the election of the returned candidate as void.

(ii) Further, declaration of himself/election petitioner or any other candidate as duly elected and any other relief other than (i) and (ii) are not contemplated under section 84 of the Representation of the People''s Act, 1851 in an election petition.

Hence, consideration of any such relief in an election petition other than those mentioned in section 84 would be impermissible and illegal. Therefore, the prayer No. 1 of the election petition i.e.:

"(i) to allow and / or pass necessary order directing discovery and inspection of documents mentioned in paragraph no. 34 of this petition and other documents in custody, possession and power of Returning Officer as and when prayed for, to substantiate the petitioner''s case;''

can not be granted in terms of the section 84 of the Representation of People''s Act, 1951 and hence, the election petition is not maintainable and may be rejected at this very threshold. Section 84 of the Representation of People''s Act 1951 is reproduced herein below for better appreciation:

"Section 84. Relief that may be claimed by the petitioner. - A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.''

That, it is stated that the Hon''ble Court can not grant any relief or pass any order other than the relief as claimable under section 84 for the grounds as set out in section 100 and section 101 Representation of People''s Act, 1951. However, in the present case in hand, the election petitioner has filed the election petition only under section 100(1)(d)(iii) & (iv) of Representation of people''s Act, 1961 and thus, the order that can be passed under section 99 of the Representation of People''s Act, 1951 for ground taken under section 100 (1)(b) of Representation of People''s Act 1951 would not arise as the election petitioner has not taken any ground under section 100(1)(b) and therefore, the relief as sought for in the election petition is not maintainable in as much as the election petition is without any cause of action against the respondent No. 1/ applicant and the same is liable to be rejected at this threshold for failure to disclose cause of action under order VII Rule 11 of CPC.

That, it is stated that the relief as sought for on the ground of improper receipt of postal ballots after the completion of the counting of votes and after declaration of the applicant / Respondent No. 1 as an elected Member of the Legislative Assembly from Sagolband AC is wholly misconceived and afterthought action due to the miserable defeat. The petition itself is indicative of the fact that the present petition is filed out of confusion and heartburning of the election petitioner who was miserably defeated in the election and such vexatious petition may be rejected out rightly saddling with heavy cost.

In order to contest the application, a written objection has been filed by the respondent/ petitioner denying the averments made therein and in the written objection, it has been stated that the election has been challenged on the ground of improper receipt of ballot papers in violation of provisions of the Act and guidelines issued by the Election Commission of India (hereinafter referred to as ''the ECI''). Instead of filing the written statement within time, the application has been filed with a view to delay the disposal of this petition. Since the cause of action has been disclosed in the petition, the application itself is not maintainable and the relief sought for therein, cannot be granted by this court. Denying the allegation that the respondent/ petitioner''s election agent had not objected to the counting of postal ballots, it has been submitted that the counting of postal ballots was vehemently objected to by the election agent. The dispute being related to improper reception of votes, refusal of votes and rejection of votes, the same cannot be gone into while the application is being considered and it is a matter to be considered during the trial of the election petition. To find out whether material facts have been stated in the petition to disclose the cause of action, the election petition has to be read as a whole. The election petition has been filed in compliance with the provisions of Section 84 of the Act and as regards the prayer (i), it has been stated that it is not possible for the respondent/ petitioner to provide material facts and full particulars in respect of certain documents which are in the custody of the Returning Officer and therefore, the said prayer has been made seeking discovery and inspection of documents for a fair trial as contemplated under Section 87 of the Act. According to the respondent/ petitioner, the concise statement of the material facts on the basis of which the election of the applicant/ respondent No.1 has been challenged, is made in Para 31 of the election petition which is reproduced hereinbelow:- "31. That the petitioner is stating herein the concise statement of the material facts with regard to challenge to the election of the returned candidate, namely, Shri Rajkumar Imo Singh (respondent No. 1):-

(i) A perusal of the Final Result Sheet in Form 20 would show that a total of 298 votes were recorded on Postal Ballot papers and out of which 14 were rejected, the election petitioner received 126 votes, the returned candidate, Respondent No. 1 received 155 votes and Respondent Nos. 2 and 3 received 2 and 1 votes respectively.

(ii) Since the record shows that the 298 votes were polled through Postal Ballot, the same has to be polled in accordance with the provisions of Section 60 of the Act, 1951 read with Section 20 of the Act, 1950 and in compliance with Rules 17 to 27 and Rules 27A to 27K of the Rules, 1961 as well as the Guidelines issued by the Election Commission of India and it has to be counted in accordance with Rule 54-A of the Rules, 1961. While complying with the aforesaid provisions of law, the poll officials are also required to use the following prescribed Forms:

(a)

Form 12

-

Letter of intimation to Returning Officer.

(b)

Form 12A

-

Application for Election Duty Certificate.

(c)

Form 12B

-

Election Duty Certificate.

(d)

Form 12C

-

Letter of intimation to Assistant Returning Officer for notified class of electors.

(e)

Form 13A

-

Declaration by Elector.

(f)

Form 13B

-

Cover A

(g)

Form 13C

-

Cover B (to be used at an election to the House of the People or the Legislative Assembly of a State)

(h)

Form 13D

-

Instructions for the guidance of electors (to be used at an election to the House of the People or the Legislative Assembly of as State)

(i)

Form 13E

-

Instructions for guidance of notified class of electors (to be used at an election to the House of the People/Legislative Assembly)

Besides above the poll officials are also required to comply with the guidelines/instructions/orders/ directions mentioned in the above referred paragraphs of this Election Petition.

(iii) It is to be noted herein that any elector who is entitled as per the provisions of Section 60 of the Act, 1951 read with Section 20 of the Act, 1950, to vote by Postal Ballot, they are required to send intimation in Form 12 and Form 12C of the Rules, 1961. Moreover, the electors who are under preventive detention are also required to send intimation that they wishes to cast their vote by Postal Ballot. In view of the provisions of law quoted hereinabove, it is mandatory to intimate the Returning Officer in the aforesaid format and in the manner provided therein and only on receipt of the intimation in the prescribed format the Returning Officer shall issue a Postal Ballot paper to the elector concerned.

(iv) Though, the petitioner sought information from the Returning Officer/District Election Officer by filing an application dated 05-04-2017 to provide the total number of requests received by the voters in prescribed form to franchise their right by way of Postal Ballot and also to provide separate detail with regard to request from each of the category of voters and also sought for the certified copies of Form 12, Form 12C as well as intimation received from electors under preventive detention, the same has not been provided to the election petitioner.

A copy of the application dated 05-04-2017 is annexed herewith and marked as Annexure - A/3.

(v) The election petitioner through his election agent namely K. Umakanta Singh also discussed the matter in this regard with the Returning Officer on 13-03-2017 and it has been intimated verbally that they are not in a position to provide the intimations received in the prescribe form. It was further informed that they are also not in a position to provide the list of electors who franchised their votes by way of Postal Ballot papers. It was further intimated that they are also not in a positions to give category wise electors entitled to vote by Postal Ballot.

(vi) In view of the provisions of Rule 20 of the Rules, 1961, the voters on election duty may wish to vote by Postal Ballot or they may wish to vote in person. In so far as the voters on election duty wish to vote by Postal Ballot paper, they are required to make request in Form 12 of the Rules, 1961 for providing them Postal Ballot and this category of voters would be included in the electors already referred hereinabove. Besides above there may be voters on election duty who wishes to vote in person and accordingly, they are required to make an application in Form 12A of the Rules, 1961 desiring to vote in person and seeking election Duty Certificate in Form 12B of the Rules, 1961. The aforesaid procedure is prescribed to facilitate the voters on election duty and once on receipt of an application in Form 12A and issuance of Election Duty Certificate in Form 12B, this category of voters are debarred from casting their votes in person in the respective polling station under which they are registered as electors.

(vii) The petitioner also sought information from the Returning Officer/District Election Officer to furnish how many voters on election duty made application in Form 12A seeking Election Duty Certificate in Form 12B and also requested to furnish the certified copies of such Form 12A and Form 12B but the said information as well as the certified copies were not provided to the election petitioner.

(viii) The election petitioner through his election agent discussed the matter relating to the voters on election duty who wished their desire to vote in person with the Returning Officer/District Election Officer but it has been informed to the petitioner that strict compliance of the law with regard to permitting the voters on election duty and issuance of Election Duty Certificate were not strictly complied with an it was further intimated that in view of above, they are not in a position to furnish the number of such voters on election duty as well as the certified copies of Form 12A and Form 12B. It was further intimated to the petitioner that some of such voters cast their votes in their respective polling stations as well as through postal ballots.

A copy of a notice dated 09-03-2017 wherein the votes were cancelled for casting their votes in the polling booth in spite of polling through postal ballots is annexed herewith and marked as Annexure - A/4.

(ix) It is the mandate of law that one the intimation in prescribed forms are received from the voters entitled to franchise their votes by way of Postal Ballot, the Returning Officer is required to sent Postal Ballot papers either by certificate of posting and/or by registered post and in case of special voters or voters on election duty, deliver the ballot paper and Forms, or caused them to be delivered, to such voters personally. The Returning Officer is also mandatorily required to sent the Postal Ballot paper together with -

(a) Declaration in Form 13A;

(b) A cover in Form 13B;

(c) A large cover addressed to the Returning Officer in Form 13C;

(d) Instructions for the guidance of the elector in Form 13D; and

(e) Instruction for the guidance of the elector in Form 13E.

(x) In this regard, the petitioner made written request on 05-04-2017 seeking separately the number of Postal Ballot papers issued to each category of electors entitled to vote by Postal Ballot and also the mode and manner in which the Postal Ballot papers were sent. Further information was sought to provide the number of persons to whom Postal Ballot papers were provided by post as well as personally. The information was also sought as to whether the electoral roll number of the voters concerned were entered in the counterfoil of Postal Ballot papers and as to whether the name of the concerned voter were marked in the marked copy of the electoral roll. The information was also sought as to whether the counterfoils as well as the marked copy of such electoral roll were sealed in the mode and manner as prescribed in the Rules, 1961. However, the said information were not provided to the petitioner by the Returning Officer and/or District Election Officer.

(xi) The petitioner through his election agent discussed the matter relating in this regard with the Returning Officer and District Election Officer, but it was intimated by them that since they have not followed the mandate of law scrupulously in this regard, they are not in a position to provide the details sought for.

(xii) The recording of vote of such Postal Ballot papers are required to be made as per the provisions contained in rule 24 and Rule 27F of the Rules, 1961. A complete procedure is prescribed in the aforesaid provisions of law as well as in the guidelines/instructions/orders/ directions issued by the Election Commission of India in this regard. Any non-compliance with the same entails the rejection of the Postal Ballot. In view of the aforesaid provisions, an elector is required to vote through Postal Ballot in accordance with the directions contained in Part-I of Form 13D and/or Form 13E, as the case may be and to enclose it in the cover in Form 13B. The elector is also mandatorily required to sign the declaration in Form 13A in presence of the officials mentioned in Rule 24(2) of the Rules, 1961. The voter is also required to put the envelope, Form 13B and declaration, Form 13A in the large envelope, Form 13C and to return the envelope, Form 13C to the Returning Officer. It is also the mandate to write the serial number of the ballot paper on the envelope, Form 13b. The non-compliance of the aforesaid procedure entails the rejection of the Postal Ballot.

(xiii) The voters said to have been received in favour of respondent No. 1 by Postal Ballot did not comply with the provisions of Rule 24 and Rule 27F of the Rules, 1961 and the guidelines/instructions/orders/directions issued by the Election Commission of India and as such, the votes which were improperly received should not have been counted as valid votes.

(xiv) To streamline the casting of votes by the voters on election duty, the Election Commission of India issued guidelines from time to time as indicated in paragraph 27. As per the aforesaid guidelines, for facilitating voters on election duty the issue of requisite Forms, Postal Ballot papers and receipt of the same are organized at the Postal Ballot Facilitation Centre. The entire process is required to be videographed. It is also required to inform the political parties and their candidates either to be personally present or authorize a representative to remain present at the Facilitation Centre for observing the entre process. It is also the mandate that the attendance of the representatives of the contesting candidates is obtained in the Register to be maintained for the said purpose. Additional information sheet is required to be prepared for each polling station indicating the name of the elector in whose favour Postal Ballot has been issued and it is signed by Returning Officer/Assistant Returning Officer. As per the guidelines maintenance of Register for issuance of Election Duty Certificate is required. Statement in FORMAT 1, FORMAT 2 are required to be prepared on everyday and a copy is required to be sent to the District Election Officer. It is also the mandate that the political parties and candidates are present at the time of receipt of the Postal Ballot by post and in this regard they were required to be informed so that they can authorise their representative to be present. The Returning Officer is required to prepare FORMAT 3 everyday wherein entry regarding receipt of Postal Ballot papers is required to be made. The Returning Officer is also required to prepare STATEMENT 3 in respect of Postal Ballot and a copy to be sent to Chief Electoral Officer and all the candidates every day. There is also requirement of preparation of Annexure 1 and Annexure 2 as per the guidelines dated 14-05-2014 of the Election Commission of India. There is also requirement of maintenance of Register for the issuance of Election Duty Certificate.

(xv) However, the Returning Officer did not comply with the aforesaid guidelines/instructions/orders/ directions in this regard and the process was not videographed. It may be relevant to mention herein that none of the political parties and their candidates were informed to be present to observe the entire process at the Postal Ballot Facilitation Centre and the Returning Officer exercising its power for receipt of intimation, issued and received Postal Ballot papers at Postal Ballot Facilitation Centre from the voters on election duty in hush manner and the required mandatory formalities were not gone into and the required documents as referred above were not maintained as required by law.

(xvi) The Returning Officer is also required to maintain Register and other documents as stated hereinabove, but no such Register and/or other documents were maintained to show that the Postal Ballots were received in a fair and transparent manner. Since the election petitioner or the election agent of the election petitioner was not informed regarding their presence at the Postal Ballot Facilitation Centre, the entire exercise of receiving of Postal Ballot from voters on election duty were done behind the back of the election petitioner.

(xvii) Though the Returning Officer was requested to furnish the documents mentioned hereinabove, neither any information nor the certified copies of the documents were furnished. Rather on verbal discussion with the Returning Officer or District Election Centre it was intimated to the petitioner that they did not follow the procedure as prescribed with regard to the receipt of Postal Ballot from the voters on election duty at the Postal Ballot Facilitation Centre.

(xviii) The guidelines dated 04-12-2003 issued by the Election Commission of India also provides that separate table/tables is required to be kept for counting of Postal Ballot papers and on each of the table there should be an Assistant Returning Officer, one Counting Supervisor, two Counting Assistants and one Micro Observer. In this regard, the Returning Officer was requested to provide information as to how many tables were arranged for counting of Postal Ballot papers in respect of 11 - Sagolband Legislative Assembly Constituency and who were the Assistant Returning Officers, Counting Supervisors, Counting Assistants and Micro Observers for the said purpose and was also requested to furnish the name of the Counting Agents appointed for the counting of Postal Ballot papers by the respective candidates. However, no information in this regard was provided to the election petitioner. In fact, the counting of the ballots were done in violation of Rule 54-A of the Rules, 1961 read with the guidelines/instructions/orders/ directions issued by the Election Commission of India.

(xix) That, the counting agent of the petitioner verbally objected for accepting invalid and illegal and postal ballots to the Returning Officer at the time of counting of votes but the protest was not registered and no cognizance was taken over the issue. Such acceptance of invalid and illegal postal ballots are in violation of the guidelines and the rules prescribed from time to time."

Before adverting to the rival contentions, this court deems it appropriate to examine the relevant provisions of the Representation of People Act, 1951. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act. The jurisdiction is conferred upon the High Court to try an election petition. When the election petition may be presented and who may present the election petition is provided in Section 81 of the Act. The persons to be joined as parties to the petition are specified in Section 82 of the Act and except those persons specified therein, there is no provision to get other persons including the Returning Officer, the ECI etc., joined as parties to the petition. Section 83 provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and in respect of any corrupt practice alleged to have been committed, full particulars thereof be given in the petition. The relief that may be claimed by the petitioner is provided in Section 84 of the Act. The grounds on which the election can be sought to be declared as void, are enumerated in Section 100 of the Act. In other words, an election can be called in question on the basis of any one of the grounds mentioned in sub-sub-section (1) of Section 100 of the Act. In the present case, the election petition has been presented on the ground mentioned in sub-section (1)(d)(iii) & (iv) of Section 100 of the Act. Section 83 and 100 of the Act read as under:- "83. Contents of petition.-(1) 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; and

(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 corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion -

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution [or this Act or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied -

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court. may decide that the election of the returned candidate is not void."

The Act itself is a self-contained code. In Madan Mohan Vs. Kalavakunta Chandrasekhara, (1984) 2 SCC 288 the Hon''ble Supreme Court was unable to hold that the documents of the schedules formed an integral part of the petition. However, the Hon''ble Supreme Court has observed that it is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions, they must be literally and strictly construed so as to promote the object of the Act.

During the course of hearing, it has been submitted by Shri H.S. Paonam, the learned Senior Advocate appearing for the applicant/ respondent No.1 that the election petition does not disclose any cause of action, as it has failed to name any election personnel/ postal voter/ persons except his election agent for the alleged improper receipts of the postal ballots. What has been stated in the petition is the requirements of law only and not the violations thereof and moreover, at any stage during the entire course of election, the respondent/ petitioner had never raised any objection to the actions being taken by the officials towards receipt and counting of postal ballots and the filing of the present petition is nothing but an afterthought out of frustration. The respondent/ petitioner cannot now be permitted to raise the objection after the result of the election having been declared by the ECI. Since there is no material in his possession, a prayer has been made in the petition to make a roving inquiry which is not permissible under the Act and it was intended to fish out the material for challenging the election of the applicant/ respondent No.1 violating the sanctity and secrecy of the election process. In the petition, there is no specific assertion of violation of any provision of law. Combating the submission of the learned counsel appearing for the respondent/ petitioner, Shri A.C. Borbora, the learned Senior Advocate has submitted that since the concise statement of the material facts has been made in the election petition and in particular, para 31 thereof, the application itself is not maintainable and that this court may proceed with the trial. The question that arise for consideration by this court is as to whether the election petition contains a concise statement of material facts, as mandated under the provisions of Section 83(1)(a) of the Act, disclosing any cause of action? What does the expression ''material facts'' mean? What is its content, scope and value in the context of the election petition? Admittedly, the expression ''material facts'' is not defined in the Act but the Hon''ble Supreme Court, while deciding the appeals arising out of various election petitions, has examined it and expressed its observations. In Samant N. Balkrishna & anr. Vs. George Fernandez & ors., (1969) 3 SCC 238 wherein the election of Mr. George Fernandez was challenged on the grounds that the election was invalid for non-compliance with the provisions of Section 62 of the Act, Article 326 and 327 of the Constitution of India as well as the allegations of corrupt practices, the Hon''ble Supreme Court held that the election petition must set out the material facts on which a charge can be made and mere repetition of the words of the statute does not amount to proper statement of facts. The material facts must be stated in the petition and if they are missing, it is impossible to think that the charge has been made or can be later amplified.

In V.S. Achuthanandan Vs. V.J. francis & anr., (1999) 3 SCC 737 wherein the appellant filed an election petition on the ground of corrupt practices and illegalities in the counting of ballot-papers, many issues were framed of which only two issues which are relevant, are: (a) whether the petition has been presented in compliance with the provisions of the Act and (b) whether the allegations made out a cause of action at all warranting trial of the election petition? The said issues were decided by the High Court against the appellant holding that the allegation made in the petition lacked material facts and particulars and being vague and ambiguous, required no trial. An appeal was preferred contending inter-alia that the Hon''ble High Court has adopted a hyper technical approach in the matter and that the election petition has been dismissed finally on merits without affording the appellant an opportunity to prove his case. The Hon''ble Supreme Court referred to its various decisions and in particular, L.R. Shivramagowda Vs. T.M Chandrashekar, (1999) 1 SCC 666 wherein, it has been held that -

"13. In Udhav Singh v. Madhav Rao Scindia a Division Bench of this Court explained the distinction between material facts and material particulars as follows: (SCC p. 523, paras 42-43)

''42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are ''material facts''. In the context of a charge of corrupt practice ''material facts'' would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action are ''material facts'' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).

''Particulars'' on the other hand are ''the details of the case set up by the party''. ''Material particulars'' within the contemplation of clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). ''Particulars'' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative."

In V. Narayanaswamy Vs. C.P. Thirunavukkarasu, reported in (2000) 2 SCC 294 the election petition was filed by the appellant on the ground that the election was vitiated due to corrupt practices. An application filed by the respondent under Order 6 Rule 6 and Order 7 Rule 11 of the CPC was allowed and consequently, the election petition was dismissed under Section 83(1) of the Act. The question was- what is the effect of lack of material facts, material particulars, proper verification to the election petition and the defective affidavit required to be filed in the form prescribed? The Hon''ble Supreme Court, after examining its earlier decisions, held:

"23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between ''material facts'' and ''material particulars''. While the failure to plead material facts is fatal to the election petition the absence of material constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance of conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is in violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls with the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations or corrupt practices cannot be inquired and tried at all. In such as case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition."

In Virender Nath Gautam Vs. Satpal Singh & ors., (2007) 3 SCC 617 an election petition was dismissed by the High Court by upholding the preliminary objection raised by the first respondent that the election did not disclose material facts and was liable to be dismissed. On the basis of the pleadings, the High Court framed three issues with regard to the preliminary objections- (a) whether the petition does not disclose any cause of action; (b) whether the petition lacks in material facts and particulars, as contemplated under Section 83 of the Act; and (c) whether the petitioner is estopped from claiming re-counting of votes? The Hon''ble Supreme Court, while allowing the appeal, held:

"29. From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of ''material facts'' on which the petitioner relies. It should also contain ''full particulars'' of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as ''the Code'') for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof.

All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.

The expression ''material facts'' has neither been defined in the Act nor in the Code. According to the dictionary meaning, ''material'' means ''fundamental'', ''vital'', ''basic'', ''cardinal'', ''central'', ''crucial'', ''decisive'', ''essential'', ''pivotal'', ''indispensable'', ''elementary'' or ''primary''. [Burton''s Legal Thesaurus (3rd Edn.), p. 349]. The phrase ''material facts'', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, ''material facts'' are facts upon which the plaintiff''s cause of action or the defendant''s defence depends. What particulars could be said to be ''material facts'' 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.

In the leading case of Philipps v. Philipps, Cotton, L.J. stated: ''What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.''

In Bruce v. Odhams Press Ltd., Scott, L.J. referring to Philipps v. Philipps observed: (All ER p. 294) ''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'' 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 RSC Order 25 Rule 4 (see Philipps v. Philipps); or ''a further and better statement of claim'' may be ordered under Rule 7.''

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.

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 party would be leading at the time of trial.

On an additional ground also, the order of the High Court is liable to be set aside. All allegations in para 8 of the election petition, as also sub-paras (i) to (iv) of para 8 relate to improper and illegal reception and acceptance of votes and the election petitioner has challenged the election of the returned candidate on that ground and not on the ground of ''corrupt practice''. He was, therefore, required to state material facts in the election petition under Section 83(1)(a) of the Act. It was, however, not necessary to ''set forth full particulars'', which is the requirement of Section 83(1)(b) of ''any corrupt practice''."

In Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 wherein the respondent filed an election petition for declaring the election of the appellant as null and void on the ground of corrupt practice. Apart from raising number of preliminary objections, it was contended by the appellant that the election does not contain a concise statement of the material facts on the respondent relies and therefore, the petition does not comply with clause (a) of sub-section (1) of Section 83 of the Act. The question which was adjudicated upon by the Hon''ble Supreme Court therein was as to whether the election petition was liable to be dismissed because of lack material facts. While allowing the appeal, the Hon''ble Supreme Court directed that the election petition stood dismissed and observed as under:

''58. There is no definition of ''material facts'' either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as ''material facts''. All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. ''Material facts'' in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case tried to give various meanings of ''material facts''. The relevant para 48 of the said judgment is reproduced as under: (SCC pp. 526-27)

''48. The expression ''material facts'' has neither been defined in the Act nor in the Code. According to the dictionary meaning, ''material'' means ''fundamental'', ''vital'', ''basic'', ''cardinal'', ''central'', ''crucial'', ''decisive'', ''essential'', ''pivotal'', ''indispensable'', ''elementary'' or ''primary''. [Burton''s Legal Thesaurus (3rd Edn.), p. 349.] The phrase ''material facts'', therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, ''material facts'' are facts upon which the plaintiff''s cause of action or the defendant''s defence depends. What particulars could be said to be ''material facts'' 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.''

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 (the 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.

The legal position has been crystallised by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are ''material facts'' which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act."

In Markio Tado Vs. Takam Sorang & ors., (2012) 3 SCC 236 the Hon''ble Supreme Court has held that in an election petition, one has to plead the material facts at the outset and the failure to plead the same is fatal to the election petition.

In Shambhu Prasad Sharma Vs. Charandas Mahant & ors., (2012) 11 SCC 390 an election petition filed by the appellant on the allegation that the nomination papers filed by the seventeen candidates had been improperly and illegally accepted, was dismissed by the High Court on the ground that the same did not make a concise statement of the material facts and hence, fail to disclose a cause of action. While dismissing the appeal preferred against the judgment and order of the High Court, the Hon''ble Supreme Court held that the appellant was required to not only allege material facts relevant to such improper acceptance but further assert that the election of the returned candidate had been materially affected by such acceptance. There is no such assertion in the election petition. Mere improper acceptance assuming that any such improper acceptance was supported by assertion of material facts by the appellant-petitioner, would not disclose any cause of action to call for trial of the election petition on merit unless the same is alleged to have materially affected the result of the returned candidate.

As has been stated hereinabove, Section 83(1)(a) provides that an election petition shall contain a concise statement of material facts and non-compliance thereof will render the petition liable to be dismissed. The mere statement of material facts is not enough and the material facts, so stated in the petition, must disclose the cause of action, failing which the election petition can be dismissed by the court in exercise of power conferred under the provisions of Order 7 Rule 11 of the CPC. In Azhar Hussain Vs. Rajiv Gandhi, 1986 Suppl. SCC 315 the Hon''ble Supreme Court has held that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the C.P.C. Appropriate orders in exercise of power under the C.P.C 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. In Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, the Hon''ble Supreme Court held: "50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code 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."

In Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy & ors., (2012) 7 SCC 788 wherein the question was as to whether the election petition filed by the respondent No.1 therein disclosed a cause of action. The Hon''ble Supreme Court examined the expression ''cause of action'' and its earlier decisions wherein it has been held that while determining the question whether the plaint discloses a cause of action, the court must take into consideration the plaint as a whole and if no cause of action is found discernible, the court can exercise its power under Order 7 Rule 11 of CPC.

In Ashraf Kokkur Vs. K.V. Abdul Khader & ors., (2015) 1 SCC 129, the question was as to whether the averments in the election petition disclose a cause of action as required under Order 7 Rule 11(a) of the CPC, 1908. The sole ground in the election petition is that the respondent is disqualified under Article 191(1)(a) of the Constitution of India, since he was holding the post Chairperson of the Kerala State Wakf Board. While allowing the appeal, the Hon''ble Supreme Court held:

"12. The requirement under Section 83(1)(a) of the RP Act in contradistinction to Section 83(1)(b) of the RP Act is that the election petition need contain only a concise statement of the material facts and not material particulars. ''Concise'' according to Oxford Dictionary means, ''brief and comprehensive''. Concise Oxford Dictionary has given the meaning to the expression ''concise'' as ''giving a lot of information clearly and in few words''. As per Webster''s Comprehensive Dictionary, International Edition, expression has been defined as ''expressing much in brief form''.

Holding an office of profit under the Government of India or the Government of any State is the disqualification. Whether that ground is discernible if the election petition is read as a whole, is the simple exercise to be undertaken by the High Court, when called upon to do so under Order 7 Rule 11(a) CPC.

14.1. At Para 3 of the election petition, it is contended that the respondent was holding an office of profit viz. the Chairperson of the Kerala State Wakf Board. Again, in the same paragraph, it is stated that the Chairperson of the State Wakf Board receives such remuneration as is provided for and prescribed by the Government of Kerala. After quoting Article 191 of the Constitution, it is pleaded that any person who holds an office of profit under the State Government, is debarred from contesting the elections to the Legislative Assembly. It is again pleaded that the State of Kerala having not made any legislation on removal of disqualification of the Chairperson of the Wakf Board, the Chairperson of the Kerala State Wakf Board is disqualified under Article 191 of the Constitution.

14.2. At Para 6, enumerating the particulars, it is pleaded that he was holding an office of profit in having been granted honorarium, allowances and enjoying the facility of a car at State expenses and drawing other pecuniary advantages.

14.3. Again, under Para 7, it is stated that the first respondent was provided with chauffeur whose salary and allowances are paid also from the funds of the Government of Kerala.

14.4. At Para 10, it is clearly stated that ''since admittedly on the date of the election, the first respondent was holding an office of profit as the Chairperson of the Kerala State Wakf Board, he was disqualified to contest the election''.

14.5. In Ground A in the election petition, it is reiterated that the first respondent suffered from the disqualification under Article 191 of the Constitution of India since he was holding an office of profit as Chairperson of the Wakf Board and that he was entitled and drawing financial perquisites and allowances and pecuniary benefits from the State of Kerala as Chairperson of the Kerala State Wakf Board and, hence, he was holding an office of profit which was a disqualification under Article 191 of the Constitution of India. Thus, he was disqualified to contest the election to the Kerala State Legislative Assembly.

14.6. These averments, to us, clearly disclose a cause of action viz. the respondent was holding the position as Chairperson of the Kerala State Wakf Board and deriving financial benefits from the Kerala Government is disqualified under Article 191(1)(a) of the Constitution of India, as holding of an office of profit under the State Government of Kerala. That is the triable issue in the election petition.

After all, the inquiry under Order 7 Rule 11(a) CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression ''material facts'' plainly means facts pertaining to the subject-matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial [see Philipps v. Philipps (QBD p. 133); Mohan Rawale v. Damodar Tatyaba (SCC p. 399, para 16)].

In Hari Shanker Jain v. Sonia Gandhi, a three-Judge Bench of this Court held that the expression ''cause of action'' would mean facts to be proved, if traversed, in order to support his right to the judgment of the court and that the function of the party is to present a full picture of the cause of action with such further information so as to make opposite party understand the case he will have to meet. To quote para 23: (SCC p. 251)

"23. ... The expression ''cause of action'' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party 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. (See Samant N. Balkrishna v. George Fernandez and Jitendra Bahadur Singh v. Kirshna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead ''material facts'' is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition."

Out of these decisions relied upon by the learned counsels appearing for the parties, only in respect of few cases the election petitions have been filed on the grounds contained in Section 100(1) (d)(iii) and (iv) but the Hon''ble Supreme has decided one of them on technical point as regards the scope of the expression ''proper parties'' as contemplated in the Civil Procedure Code. In any case, the Hon''ble Supreme Court has not laid down any law on the issue as to what particulars would constitute material facts in an election petition filed on the grounds contained in Section 100(1)(d)(iii) and (iv) of the Act. That means, the principle laid down by the Hon''ble Supreme Court with respect to the expression ''material facts'' would apply to all election petitions irrespective of whether the same are filed on any of the grounds enumerated in Section 100 of the Act and it would depend upon the facts of each case. In Michael B. Fernadez Vs. C.K. Jaffer Sharief & ors., (2002) 3 SCC 521, the appellant filed an election petition challenging the election on the grounds contained in Section 100(1)(d)(iii) and (iv) with the allegation that the provisions of the Constitution and the rules including guidelines were not complied with by the Returning Officer and the Chief Electoral Officer who have been impleaded as party respondents. The High Court having deleted the names of the Returning Officer and the Chief Electoral Officer from the array of parties, an appeal by way of special leave was preferred before the Hon''ble Supreme Court. Reiterating the views taken in Jyoti Basu case, AIR 1963 Cal. 218 and B. Sundara Rami Reddy case, AIR 1969 Bom 177, the Hon''ble Supreme Court held that on a plain reading of Section 82, which indicates as to the person who can be joined as a respondent to an election petition, the conclusion is irresistible that the retuned candidate, the candidate against whom allegations of any corrupt practice have been made, is to be joined as party-respondent when declaration is sought for holding the election of the returned candidate to be void and when a prayer is made as to any other candidate to be declared to be duly elected, then all the candidates are required to be made party-respondents. On a literal interpretation of the provisions of Section 82, it can be said that an election petition which does not make the persons enumerated in Section 82 of the Act, as party-respondents is liable to be dismissed. Only those may be joined as respondents to an election petition, who are mentioned in Section 82 and 86(4) and no others. The concept of ''proper parties'' as provided in CPC is and remains alien to an election disputer under the Act. Accordingly, the Hon''ble Supreme Court has refused to interfere with the judgment and order of the High Court. In Kalyan Singh Chouhan Vs. C.P. Joshi, (2011) 11 SCC 786 the respondent filed an election petition under Section 80, 81, 100(1)(d)(iii) and 100(1)(d)(iv) of the Act on the inter-alia alleging that the name of the petitioner''s wife was registered in places in the electoral rolls of the constituency and hence, she had cast the two votes in the election and six tendered votes cast in the election must be counted and rejected. During the trial, the appellant filed an application to summon the marked copies of the electoral rolls; register of votes in Form 17-A and list of tendered votes in Form 17-B relating to Polling Stations 68, 124 and 192 of the constituency. However, the said application was rejected by the High Court. On an appeal, the Hon''ble Supreme Court did not find any cogent reason to interfere with the judgment and order of the High Court holding inter-alia that there had been no pleading in respect of the remaining 4 tendered votes; that during the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry and the party must plead the material facts and adduce evidence to substantiate the same so that court may proceed to adjudicate upon the that issue. The court must not travel beyond the pleadings.

In D. Ramachandra Vs. R.V.Janakiraman, (1993) 3 SCC 267 wherein one of the issues was as to whether preliminary objections taken as to the maintainability of the election petition is sustainable in law, on the facts and in the circumstances of the case, the Hon''ble Supreme Court held that it is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments made in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. Order 7 Rule 11 enjoins the court to reject the plaint where it does not disclose a cause of action. It is elementary that under Order 7 Rule 11 (a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. While holding that the election petition as such does disclose a cause of action which if un-rebutted could void the election and that the provisions of Order 7 Rule 11 (a) cannot therefore be invoked in that case, the Hon''ble supreme court held that the judgment and order of the High Court unsustainable. In T.M. Jacb Vs. C. Poulose & ors., (1999) 4 SCC 274, an appeal by way of special leave was filed against the order passed by the learned Single Judge rejecting the application on various grounds. The said application has been filed in an election petition filed by the first respondent alleging that the election of the appellant stood vitiated by commission of various corrupt practices. The prayer was that the election petition be dismissed for non-compliance with the provisions of Section 81(3) of the Act. In view of the decisions rendered in Dr. Shipra Vs. Shantilal Khoiwal, (1996) 5 SCC 181, the matter was referred to the Constitution Bench which relates to the issue as regards the defect in the copy of the affidavit supplied to the returned candidate. The other question which was considered, was as to whether the election petition was liable to be rejected in liminie for non-compliance with Section 81(3) read with Section 86(1) of the Act on account of the defect in the ''true copy'' supplied to the respondent. The Hon''ble Supreme Court held that the expression ''copy'' in Section 81(3) of the Act means a copy which is substantially so and which does not contain material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/ allegations made against him in the election petition. While disagreeing the contention of Shri Salve, the Supreme Court observed that the legislative intent appears to be quite clear, since it divides violations into two classes - those violations which will entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83(1) of the Act, i.e., non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type in Section 83 of the Act can be dealt with under the doctrine of curability on the principles contained in the Code of Civil Procedure. It is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86 (1) to follow.

From the above decisions rendered by the Hon''ble Supreme Court, it is absolutely clear that the result of an election can be questioned under the provisions of the Act only and that too, on the grounds enumerated in Section 100 of the Act. The election petition must set out the material facts on the basis of which the charge can be made and in the event of the material facts not being stated in the petition, the same is liable to be dismissed. Admittedly, the expression ''material facts'' is not defined in the Act. However, the Hon''ble Supreme Court has, time and again, laid down that all facts necessary to formulate a complete cause of action should be termed as ''material facts''. In the context of a charge of corrupt practice, the expression ''material facts'' would mean all the basic facts constituting the ingredients of the particular corrupt practice which the petitioner is bound to substantiate before he can succeed on that charge. Whether in a election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In other words, all those facts which are essential to clothe the petitioner with a complete cause of action are ''material facts'' which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a). The expression ''material facts'' is different from the expression ''material particulars'' which as contemplated under clause (b) of Section 83(1) would mean all the details which are necessary to amplify, refine, and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). What particulars could be said to be ''material facts'' would depend upon the facts of each case and no rule of universal application can be laid down. However, 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. The object and purpose of pleading ''material facts'' is to enable the opposite party to know the case he has to meet and in the absence of such a pleading, a party cannot be allowed to lead evidence. The requirement under Section 83(1)(a) of the Act in contradiction to Section 83(1)(b) of the Act is that the election petition needs to contain only a concise statement of the material facts and not material particulars. For purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. However, the court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. The petition has to be considered as a whole and there cannot be a partial rejection of the petition. In all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if averments made in the petition are proved to be true.

On the basis of the cases cited and relied upon by the learned counsels appearing for the parties as stated hereinabove, the election petitions filed under the provisions of Section 80 of the Act can be broadly categorised into two - one, an election petition filed on the ground of corrupt practice and two, an election petition filed on the ground that the result of the election has been martially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act. Section 83(1)(a) which mandates that an election petition shall contain a concise statement of material facts, is common for both the categories of election petitions. So far as the first category is concerned, Section 83(1)(b) provides that the election petition shall set out full particulars of corrupt practice. Many of the cases in which election petitions have been filed, fall under the first category and the allegations are mainly against the returned candidate. That is the reason as to why the concise statement of material facts has become inevitable so that the returned candidate can understand the charge levelled against him and meet the same in his/ her defence. The requirement of setting out full particulars of corrupt practice is not there in respect of the second category for the simple reason that the corrupt practice is not the ground on which the election petition has been filed. As regards the second category, there are two aspects which need to be taken into consideration by the court while deciding the election petition. The first aspect relates to a situation where the allegations are not made against the returned candidate but against the officials who are involved in the conduct of election. It may be noted that Section 82 talks about the persons to be joined as respondents but neither the officials who are involved in the conduct of election nor the ECI can be made as parties in the petition, as is evident from the decisions of the Hon''ble Supreme Court referred to hereinabove. The point that may arise for consideration by the court, relates to how the returned candidate will defend himself in respect of the allegations made against the officials. The second aspect relates to a situation where the officials or for that matter, the ECI are alleged to have not complied with the provisions of the Constitution or of this Act or of any rules or orders made under the Act while conducting the election but no one had raised any objection thereto, during the course of the election, with the result that the result of the election had been declared. This aspect is very important from a different perspective because the election can be declared as void for no fault of the returned candidate but of the officials of the ECI and in that event, it may tantamount to penalising the returned candidate with no remedy.

As has been held by the Hon''ble Supreme Court, what particulars could be said to be ''material facts'' would depend upon the facts of each case and no rule of universal application can be laid down. Therefore, the nature and content of material facts would differ from one case to another and in other words, the material facts to be stated in respect of an election petition filed on the ground of corrupt practice, would be different from that of the election petition filed on any other grounds. In the present case, the election petition has been filed on the grounds mentioned in Section 100(1)(d)(iii) and 100(1)(d)(iv) of the Act. This petition being filed not on the ground of corrupt practice, it does not require to state anything about the conduct of the returned candidate but it must definitely state as to how any vote has been improperly received, refused or rejected and the provisions of the Constitution, of the Act and the rules made thereunder have been violated. In terms of the law laid down by the Hon''ble Supreme Court, the election petition as a whole is to be read to find out if it contains a concise statement of material facts disclosing a cause of action. According to the respondent/ petitioner, the materials facts have been stated in para 31 of the petition, the gist of which are inter-alia that the election was held on 04-03-2017 as per schedule and counting of votes took place on 11-03-2017. Immediately after the result of the election being declared, the respondent/ petitioner through his agent namely K. Umakanata Singh discussed the matter in this regard with the Returning Officer, on 13-03-2017, who intimated verbally that they were not in a position to furnish information as regards the list of electors who franchised their votes by way of postal ballot papers, number of voters on election duty, etc. While discussing with the voters on election duty through his election agent, it has been informed to him that strict compliance of law with regard to permitting the voters on election duty and issuance of Election Duty Certificate, was not complied with. On 05-04-2017 the petitioner made a written request seeking separately the number of postal ballot papers issued to each category of electors entitled to vote by postal ballot and the mode and manner in which the postal ballot papers were sent. Further information was sought to provide the number of persons to whom postal ballot papers were provided by post as well as in person. The information was sought for as to whether the electoral roll number of the voters concerned were entered in the counterfoils of postal ballot papers and were marked in the copy of the electoral roll and whether the counterfoils as well as the marked copy of such electoral roll were sealed in the mode and manner as prescribed in the Rules, 1961. However, these information were not provided to the petitioner by the Returning Officer and /or the District Election Officer. The votes said to have been received in favour of the applicant/ respondent No.1 by postal ballot, did not comply with the provisions of Rule 24 and Rule 27F of the Rules, 1961. The entire process as regards the issue of requisite forms, postal ballot papers and receipt of the same organised at the Postal Ballot Facilitations Centre was not video- graphed as per guidelines/ instructions etc. Since the agent of the respondent/ petitioner was not informed regarding his presence at the Postal Ballot Facilitation Centre, the entire exercise was done behind the back of the respondent/ petitioner. The counting of the ballots was done in violation of Rule 54A of the Rules, 1961 and the guidelines dated 04-12-2003 of the ECI. The verbal objection of the agent of the respondent/ petitioner as regards accepting invalid and illegal postal ballots, was not registered and no cognisance thereof was taken by the Returning Officer. The contention of the learned counsel appearing for the applicant/ respondent No.1 is that the respondent/ petitioner, in his petition, has failed to name any election personnel/ postal voter/ person who has improperly accepted the postal ballots. His contention appears to be true to that extent but the other ground is that the result of the election has been materially affected by non-compliance with the provisions of the Constitution or of the Act and the rules made thereunder. After going through the averments made in the election petition as a whole, it cannot be said that the petition does not contain a concise statement of material facts. In fact, it does disclosing a cause of action. The contention of the learned counsel appearing for the applicant/ respondent No.1 has no substance and merit. So long as the petition discloses some cause of action or raises some questions fit to be decided by the court, the mere fact that the case is weak and not likely to succeed, is no ground for dismissing it. Therefore, the trial can continue on merits and it is a different matter if the material facts as stated in the petition, are not sufficient to prove the allegations. Whether or not the respondent/ petitioner is able to prove the allegations, is a matter of evidence which can be considered only at the stage of trial, as has been held by the Hon''ble Supreme Court. In view of the above, this court is of the view that there had been substantial compliance with the provisions of Section 83(1)(a) of the Act and since the application is devoid of any merit, the same is liable to be rejected by this court.

For the reasons stated hereinabove, the application being MC (Elec. Pet.) No. 9 of 2017 is rejected with no order as to costs.