# [1998] Supp. 3 S.C.R. 241

- **Citation:** [1998] Supp. 3 S.C.R. 241
- **Court:** Supreme Court of India
- **Decided:** 1998-12-01
- **Case number:** Civil Appeal No. 4272 of 1991
- **Bench:** Dr. A.S. Anand, B.N. Kirpal, M. Srinivasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1998-supp-3-s-c-r-241-16422
- **Pages:** 23

## Headnote

B
Representation of the People Act, 1951.
Ss. 77(1) and (2), 110(1), 123(6)-Legislative Assembly ElectionCorrupt practice-Election petition-Pleadings-"Material facts" and C
"Material particulars"-Dijference between-Absence of material facts in
petition-Effect of-Election of returned candidate challenged for non-filing
of correct and true accounts of election expenses-No a/legation of incurring
expenses over and above prescribed limit-Held, essential requirement under
S.123(6) is that result of election insofar as it concerns the returned candidate D
has been materially affected-Failure on part of returned candidate to
maintain accounts as required by S. 77(1) and (2) will in no case affect the
result of election-Election petition dismissed-Conduct of Election Rules,
1961.
Conduct of Election Rules, 1961-Rule 94-A-Form-25-Election E
Petition-Affidavit-Non compliance with Rule 94-A-Effect of
Respondent no. 1 filed an election petition challenging the election of
the appellant to the State Legislative Assembly. It was, inter alia, alleged that
the appellant did not file correct and true accounts of his election expenses
with the District Election Officer as required under the Conduct of Election F
Rules, 1961 and, therefore, the appellant was guilty of corrupt practices
within the meaning of Section 123(6) of the Representation of the People
Act, 1951. It was prayed that it be declared that the appellant committed
corrupt practices under Sections 100(1) (b), 100(1) (d) (ii) and 100(1) (d) (iv)
of the Act as also under the Rules and; that respondent No. 1, having polled
second highest number of votes, was duly elected to the said Assembly G
Constituency. The appellant denied the allegations. The High Court held that
the appellant had not maintained true and correct accounts of expenditure
incurred or authorised by him which amounted to corrupt practice. It also
observed that the expenditure incurred by the appellant was not proved to
have crossed the prescribed limit, but he was guilty of suppression of true H
241
242
SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A accounts. On these findings, the High Court declared the election of the
appellant as void and set it aside. However, keeping in view the number of
votes polled by respondent No. 1 being considerably low, the High Court
directed a fresh election for the constituency. Aggrieved, the appellant filed
the present appeal.
B
It was contended for the appellant that the High Court erred in
rendering a finding that the election was void under Section 100(1) (d) (iv)
read with Section 123(6) of the Act as it overlooked the absence of material
facts in the election petition which disabled respondent No. 1 from adducing
any evidence in the regard; and that the High Court also overlooked that the
non-maintenance of true and correct accounts would not by itself be sufficient
C to nullify the election. It was submitted that it was absolutely necessary for
the election petitioner to plead that the result of the election, insofar as it
concerned the returned candidate, had been materially affected by the alleged
non-compliance with the provisions of the Act or of the Rules.
D
Allowing the appeal, this Court
HELD: 1.1. The election petition suffers from a very serious defect of
failure to st;t out material facts of the alleged corrupt practice. The defect
invalidates the election petition in that regard and the petitioner ought not
to have been permitted to adduce any evidence with reference to the same.
The election petition does not contain any averment that the appellant had
E spent for the election an amount exceeding the prescribed limit or that the
result of the election was materially affected by the failure of the appellant
to give true and correct accounts of expenditure. These are material facts
which ought to find a place in an election petition if the election is sought
to be set aside on the basis of such facts. In the absence of either averment
p it was not open to the appel

## Text

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L.R. SHIVARAMAGOWDA ETC.
A
11.
T.M. CHANDRASHEKAR (D) BY LRS. AND ORS.
DECEMBER 1, 1998
[DR. A.S. ANAND, CJ., B.N. KIRPAL AND M. SRINIVASAN, JJ.]
B
Representation of the People Act, 1951.
Ss. 77(1) and (2), 110(1), 123(6)-Legislative Assembly ElectionCorrupt practice-Election petition-Pleadings-"Material facts" and C
"Material particulars"-Dijference between-Absence of material facts in
petition-Effect of-Election of returned candidate challenged for non-filing
of correct and true accounts of election expenses-No a/legation of incurring
expenses over and above prescribed limit-Held, essential requirement under
S.123(6) is that result of election insofar as it concerns the returned candidate D
has been materially affected-Failure on part of returned candidate to
maintain accounts as required by S. 77(1) and (2) will in no case affect the
result of election-Election petition dismissed-Conduct of Election Rules,
1961.
Conduct of Election Rules, 1961-Rule 94-A-Form-25-Election E
Petition-Affidavit-Non compliance with Rule 94-A-Effect of
Respondent no. 1 filed an election petition challenging the election of
the appellant to the State Legislative Assembly. It was, inter alia, alleged that
the appellant did not file correct and true accounts of his election expenses
with the District Election Officer as required under the Conduct of Election F
Rules, 1961 and, therefore, the appellant was guilty of corrupt practices
within the meaning of Section 123(6) of the Representation of the People
Act, 1951. It was prayed that it be declared that the appellant committed
corrupt practices under Sections 100(1) (b), 100(1) (d) (ii) and 100(1) (d) (iv)
of the Act as also under the Rules and; that respondent No. 1, having polled
second highest number of votes, was duly elected to the said Assembly G
Constituency. The appellant denied the allegations. The High Court held that
the appellant had not maintained true and correct accounts of expenditure
incurred or authorised by him which amounted to corrupt practice. It also
observed that the expenditure incurred by the appellant was not proved to
have crossed the prescribed limit, but he was guilty of suppression of true H
241
242
SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A accounts. On these findings, the High Court declared the election of the
appellant as void and set it aside. However, keeping in view the number of
votes polled by respondent No. 1 being considerably low, the High Court
directed a fresh election for the constituency. Aggrieved, the appellant filed
the present appeal.
B
It was contended for the appellant that the High Court erred in
rendering a finding that the election was void under Section 100(1) (d) (iv)
read with Section 123(6) of the Act as it overlooked the absence of material
facts in the election petition which disabled respondent No. 1 from adducing
any evidence in the regard; and that the High Court also overlooked that the
non-maintenance of true and correct accounts would not by itself be sufficient
C to nullify the election. It was submitted that it was absolutely necessary for
the election petitioner to plead that the result of the election, insofar as it
concerned the returned candidate, had been materially affected by the alleged
non-compliance with the provisions of the Act or of the Rules.
D
Allowing the appeal, this Court
HELD: 1.1. The election petition suffers from a very serious defect of
failure to st;t out material facts of the alleged corrupt practice. The defect
invalidates the election petition in that regard and the petitioner ought not
to have been permitted to adduce any evidence with reference to the same.
The election petition does not contain any averment that the appellant had
E spent for the election an amount exceeding the prescribed limit or that the
result of the election was materially affected by the failure of the appellant
to give true and correct accounts of expenditure. These are material facts
which ought to find a place in an election petition if the election is sought
to be set aside on the basis of such facts. In the absence of either averment
p it was not open to the appellant to adduce evidence to that effect.
[258-F; 253-E)
1.2. The averment found in the election petition is only to the effect that
the cost incurred by the appellant had not been furnished in his statement
of account. Mere allegation that there was contravention of Section 123(6)
G of Act, would not come to the aid of respondent No. 2 to contend that the
relevant material fact of excessive expenditure over and above the prescribed
limit had been pleaded. For the purpose of Section 100(1) (d) (iv), it is
necessary to aver specifically that the result of the election insofar as it
concerns a returned candidate has been materially affected due to the said
corrupt practice. Such averment is absent in the petition. Besides, the High
H Court recorded a factual finding that the evidence fell short of proving
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR
243
excessive expenditure over and above the prescribed maximum limit by the A
appellant. (259-C-D)
2. There is difference between pleading "Material Facts" and "Material
Particulars". While the failure to plead material facts is fatal to the election
petition and rio amendment of the pleading could be allowed to introduce such
material facts after the time limit prescribed for filing the election petition, B
the absence of material particulars can be cured at a later stage by an
appropriate amendment. (253-F-G; 262-C)
Gajanan Krishnaji Bapat and Another v. Dattaji Raghobaji Meghe and
Ors., (1995) 5 SCC 347, relied on.
c
Shri Ba/wan Singh v. Shri Lakshmi Narain ad Ors., (1960) 3 SCR 91
and Samant N. Ba/akrishan and Anr. v. George Fernandez and Ors., (1969)
3 sec 238, referred to.
3.1. In order to declare an election to be void, the grou11ds are set out
in Section 100 of the Act. Sub-Section (1) (b) of Section 100 relates to any D
corrupt practice 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. In order to bring a matter within the scope ofsub-section (I) (b), the
corru,pt practice has to be one defined in Section .123. (249-E; 251-F)
3.2. What is referred to in sub-section (6) of Section 123 as corrupt E
practice is only the incurring or authorising of expenditure in contravention
of Section 77. Sub-section (6) of Section 123 does not take into its fold, the
failure to maintain true and correct accounts. The language of sub-section
(6) is so clear that the corrupt practice defined therein can relate only to
sub-section (3) of Section 77 i.e. the incurring or authorising of expenditure
in excess of the amount prescribed. It cannot by any stretch of imagination F
be said that non-compliance with Section 77(1) & (2) would also fall within
the scope of Section 123 (6). Consequently, it cannot fall under Section
100(1) (b). The essential requirement under that sub-section is that the
result of the election insofar as it concerns the returned candidate has been
materially affected. Failure on the part of the returned candidate to maintain G
accounts as required by Section 77(1) & (2) will in no case affect, and much
less materially, the result of the election. (260-B-D)
Dalchand Jain v. Narayan Shankar Trivedi and Anr., (1969) 3 SCC
· 685, followed.
Om PrabhaJain v. Charan Das and Anr., (1975) Supp. SCC 107, held H
•
244
SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A inapplicable.
4. The affidavit filed along with the election petition does not disclose
the source of information. Nor does it set out which part of the election
petition was personally known to the petitioner and which part came to be
known by him on information. The affidavit is not in conformity with the
B prescribed Form No. 25. Thus there is a failure to comply with Rules 94A of the Conduct of Election Rules, 1961. It is a very serious defect which
has been overlooked by the High Court. [254-D; 258-HJ
c
Virendra Kumar Saklecha v. Jagjiwan and Ors., [1972) 1 SCC 826,
relied on.
F.A. Sapa and Ors. v. Singora and Ors., [1991) 3 SCC 375, referred
to.
5. Respondent No. I has failed to prove any of the allegations made by
him against the appellant that the latter was guilty of corrupt practice. The
D findings rendered by the High Court as against the appellant are, therefore,
unsustainable and deserve to be set aside. [263-B; 261-H[
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4272 of
1991.
Fonn the Judgment and Order dated 27.9.91 of the Karnataka H;gh Court
E in E.P.No. 15of1990.
F
G
WITH
Civil Appeal No. 4379of1991.
K.N. Bhat and P.R. Ramasesh for the Appellant, in C.A.No. 4379/91.
S.S. Javeli, D.N. Nanjunde Reddy and Vineet Kumar for the Appellant
in C.A. No. 4272/91.
S.S. Javeli and D.N. Nanjuda Reddy for the Respondent in C.A.No.
4379/91.
The Judgment of the Court was delivered by
SRINIVASAN, J. These two appeals have been filed under Section I I 6A
of the Representation of People Act 1951 (hereinafter referred to as the 'Act')
against the judgment and order of the High Ccurt of Karnataka at Bangalore
H dated the 27th day of September l 991 in Election Petition No. 15of1990. The
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR [SRINIVASAN, J.] 245
appellant in Civil Appeal No. 4272 of 1991 is the first respondent in the other A
appeal and the appellant in Civil Appeal No. 4379 of 1991 is the first respondent
in the former appeal. The parties will be referred to in this judgment in
acr.ordance with their ranking in Civil Appeal No. 4272of1991.
·..>
2. The appellant was the successful candidate in the election held in B
November 1989 to 101 Nagamangala Assembly Constituency in the State of
Karnataka having polled 48654 votes as against 17165 votes polled by the
first respoQdent. The appellant contested the election as an independent
-·
candidate while the first respondent represented the Congress-I Party. The
election was challenged by the first respondent on ground of corrupt practices
by the appellants falling within the scope of Section 123 of the Act. In short, c
the following were the allegations made by the first respondent in the Election
Petition :
"The appellant was a member of the Congress Party till he was expelled
on 10/15.11.89. But he held out that he was representing the said party and D
canvassed as such thereby making the voters believe that he was the Congress
candidate. The appellant set up and induced the second respondent to contest
in the election with sole intention of dividing the votes of minority community
and thereby damaged the prospects of first respondent's success. The
appellant held out a promise of securing Congress ticket to one
Ramalaingegowda in order to contest Zila Parishad election for the vacancy E
that might be caused by his election to the Assembly and thus induced him
to withdraw his support to the first respondent. The appellant got certain
pamphlets printed with national symbol on them to promote his candidature
and was guilty of corrupt practice. The appellant was also guilty of publishing
pamphlets containing false statements of his achievements with regard to
securing of loans to the needy people of the weaker section in loan melas, F
benefits to coconut growers etc. with a view to promote his candidature. The
appellant also got printed and published pamphlets in the name of Kuruba
Janangada Vedike arousing communal passion among the voters of other
community people making them believe that the first respondent was guilty
of issuing such pamphlets. Thus, the prospects of the first respondent in the G
election were affected. The appellant did not file correct and true accounts
~
of his election expenses with the District Election· Officer as required under
the Rules and thus, violated the relevant provisions of law. The appellant also
spent for the election by way of hiring more than vehicles between 6.11.89
and 24.11.89 for his election purposes, printing thousands of pamphlets,
purchasing thousands of copies of newspaper 'Nagamangala Mitra' and H
246
SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.
A giving advertisements in the newspapers and spending on postage in order
to promote his candidature. Thus he was guilty of corrupt practice within the
meaning of Section 123 (6) of the Act." On the above allegation the first
respondent prayed for a declaration that the appellant ha.ct committed corrupt
practices under Section !OO(l)(b), IOO(l)(d)(ii), 100 (l)(d)(iv) of the Act and
B the Ru !es framed thereunder and to declare that the first respondent was duly
elected to the said Assembly Constituency.
3. The petition was contested by the appellant who denied all the
allegations contained therein. The High Court framed as many as eight issues
for consideration and after trial decided the first six in favour of the appellant.
C While answering Issue No. 7 in the affirmative the High Court held that the
appellant had not maintained true and correct account of expenditure incurred
or authorised by him which amounted to corrupt practices. On issue no. 8,
the High Court observed that the expenditure incurred by the appellant was
not proved to have crossed the prescribed limit but the appellant was guilty
of suppression of true accounts. On the aforesaid findings the High Court
D declared that the election of the appellant was void and set it aside. However,
the High Court found that the prayer of the first respondent that he be
declared elected could not be granted in view of the number of votes polled
by him being considerably low and that the voters must have a free choice
to elect their representative to achieve which, fresh election for the
E constituency became imperative.
F
4. Aggrieved by the said judgment and order of the High Court the
appellant has preferred the appeal C.A. No. 4272 of 1991. The first respondent
has preferred Civil Appeal No. 4379 of 1991 challenging all the findings
rendered against him by the High Court. The appeals were heard together.
5. Mr. Javeli senior advocate for the appellant put forward two
contentions. One, the High Court is in error in rendering finding that the
election is void under Section JOO (l)(d)(iv) read with Section 123(6) of the
Act, inasmuch as it has over looked the absence of material facts in the
G elections petition, which disabled the first respondent from adducing any
evidence in that regard. Two, the High Court has over looked that the nonmaintenance of true and correct accounts would not by itself be sufficient to
nullify the election. On the other hand, Mr. Bhat, senior advocate for the first
respondent contended that there is no defect in the pleading and in any event
it is not open to the appellant to raise a plea in this Court as regards the
H alleged defect in the pleading. It was argued that failure to maintain true and
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR [SRINIVASAN, J.] 247
correct accounts would also fall within the scope of Section lOO(l)(d)(iv). He A
had also challenged the other findings rendered by the High Court as against
the first respondent.
6. At first, we will consider the contentions urged by the appellant's
counsel. The relevant pleading is found in paragraph 39 of the election B
petition which reads as follows :-
"It is submitted that the accounts furnished by the 1st respondent to
~·
the District Election Officer on 21.12.89 is not pertaining to the election
period. He has not given true and correct accounts of expenditure. He
has not furnished the details of expenditure from the date of nomination c
till the date of election. He has not further furnished the expenditure
incurred on printing of pamphlets, Badges and advertisement published
in newspaper and other amounts paid by him to several printing
presses including 'Indivar Printers', Chandramoulesware Printers and
Auto Xerox' and 'Nagamangala Mitra' Newspaper. He had hired more
D
than 10 vehicles and had used them on hire from 6.11.89 to 24.11.89.
He has incurred an expenditure as expenses of Rs. 500 per day per
vehicle. The price of the Nagamangala Mitra is 0.05 ps. per copy and
he had got printed and purchased 20,000 copies for distribution to the
voters. All these cost incurred by the I st respondent has not been
furnished in his statement of account as required under Section 77 of E
Representation of Peoples Act and Rule 86,90 of Conduct of Election
Rules 1961 and also contravention of S. 123(6) of Representation of
People Act. The certified copy of the statement of account of the I st
respondent is produced herewith as Annexure 'R' ".
In the affidavit filed by the first respondent along with the election petition, F
the followlng avennents are found in paragraph (f) :-
''that the statement made in paragraphs 28 and 39 of the said
petition about the commission of the corrupt practice of Shri L.R.
Shivarama Gowda and the particulars of such corrupt practice given G
in paragraphs 28 and 39 refers to suppression of true and correct
....
account of all expenditure in connection with his Election incurred by
him between the date on which has been nominated and the date of
declaration of the result thereof both date inclusive and incurring
expenditure in contravention of Section 77 of Representation of the
Peopl~ Act 1951 ".
H
-~
248
A
SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
Paragraph (g) reads :-
"that the Statement made in paragraphs 1 to 42 of the said petition
are true to the best of my knowledge and belief and information and
the Annexures A to B are true copy of the original."
B In the written Statement filed by the appellant paragraphs 41 and 43 read as
follows:-
c
D
E
F
G
"Para 41. Regarding allegation in para 39 that the accounts furnished
by the first respondent to the District Election Officer is not pertaining
to the election period is false. The expenditure threat does pertain to
the expenses of the election in question. It is also incorrect to say he
has not given true and correct accounts of expenditure. The further
allegation that there is no detail of expenditure and that he has not
furnished the expenditure of printing of pamphlet, badges,
advertisement published in newspaper etc., are false. Indeed there was
no payments made to Indivara Printers and Sri Chandramouleshwar
Printers and Auto Xerox, Nagamangala Mitra and others, since no
printing got done by them. That he hired more than I 0 vehicles and
used them on hire from 6.11.89 to 23.11.89 is false. The further allegation
this respondent has incurred an expenditure of Rs. 500 per day per
vehicle is false. The allegation that Nagamangala Pathrika is 50 paise
per copy and this respondent got printed and purchased 20,000 copies
is false. He has not purchased any copy. There is no violation of
Section 77 of Representation of People Act nor Rules 86 and 90 of
Conduct of Election Rules as alleged. There is no contravention of
sub-section 6 of Section 123 of Representation of People Act."
Para No.43 : The affidavit of the petitioner contains false statements
and it does not contain specific supporting assertion for any of the
particular corrupt practice the petitioner may have in his mind. The
affidavit is not in the form prescribed by the special law as such in
the eye of law it is not an affidavit at all. The affidavit is vague and
unacceptable apart from its being false and tailored for the purpose
of this case."
7. As stated already the High Court has found against the appellant
issue no. 7 and part of issue no.8. Those two issues pertained to the averments
in the aforesaid paragraph in the pleadings and they read as follows :-
H
"(7) Whether the petitioner proves that the !st respondent has not
1
-
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR [SRINIVASAN, J.] 249
filed correct and true accounts of his election expenses to the District A
.Election Officer as required under Rules and that itself amounts to
corrupt practice?
(8) Whether the petitioner proves that R-I spent for his election more
than the prescribed limit for a candidate for Assembly constituency
in the State by way of hiring more than ten-vehicles between 6.11.89 B
and 24.11.89 for his election purpose, printing thousands of pamphlets,
purchasing thousands of Nagamangala Mitra copies and giving
advertisements in news papers and postage to promote his candidature
and suppressed the true expenses and hence is guilty of corrupt
practice?"
8. More than half of the judgment under appeal is devoted to these two
issues. The discussion starts with paragraph 43 and ends with paragraph 75
which is the last paragraph of the judgment. It is necessary to extract the
following portions in the judgments :-
c
"Para 43 : Issue Nos. 7 & 8 : - whilst Issue No. 7 falls under Section D
JOO (l)(d)(iv) Issued No. 8 falls under Section 77 of the Act. In a nutshell the petitioner has contended that R-1 has not maintained proper
accounts of his election expenses and has not filed correct account
of expenses to the Returning Officer and, secondly, that he has spent
nearly Rs. 20,00,000 for his election which is in excess of the limit of E
Rs. 40,000 prescribed by the Rules applicable to the State of Kamataka
(vide Rule 90 of the Conduct of Election Rules 1961 ). The election of
a returned candidate could be declared void under Sec. 100 (I )(b) of
the Act if any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with his or his
election agent or as already stated above by his non-compliance with F
the provisions of the Act. Part VIII of Conduct of Election Rules 1961
(the Rules of 1961 for short hereafter) relates to election expenses. In
the first instance I take up the alleged breach of the provisions of S. 77
by spending more than Rs. 40,000 by R-1."
Para No. 53 " I therefore find that this allegation now made in the G
evidence cannot be considered and even otherwise it is not proved
that the money was utilised for his election so as to cross the limit
of Rs. 40,000".
Para No. 54 : "That only goes to show the interestedness of the
petitioner to add during evidence much more than what he actually H
250
SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.
A
pleaded."
B
c
D
E
F
.
After extracting Section 77 of the Act, the Court said in para 59 as follows:-
Para No. 59 : "It could thus be seen that under sub-sec. (!) every
candidate is expected to keep separate and correct account of all
expenditure in connection with his election, under sub-sec.(2) the
account shall contain such particulars as may be prescribed and the
total of such expenditure shall not exceed such amount as may be
prescribed under sub-sec.(3). Whether sub-secs. (I) and (2) bereft of
sub-sec. (3) are a distinct requirement and breach thereof itself is
sufficient to bring the case within the mischief of S. 100 is the point.
In fact this appears to be approach of the learned counsel for the
petitioner. It is urged by him that these pamphlets Exs. P-35 to P-37
and P-39 were got printed by R-1 to promote his election prospects
and, therefore, it was his duty to account for them in Ex.P-2(a)."
Para No. 62 : "As I have already found, the account furnished by
the respondent in Ex. P-2(a) reveals that he did not spend more than
ks. 13,000 for his election. On the face of it that may sound rather
ridiculous but for that reason alone there can be no inference of
incurring expenditure of more than Rs. 40,000".
Para No. 63: "As far as expenditure incurred for the use of vehicle
is concerned, I have come to the conclusion that there is no clinching
evidence and, therefore, not possible to find what could have been
the amount that he spent on vehicles. The benefit of such infirmity
in the evidence has gone to the respondent to find that the expenditure
is not proved to have crossed the limit of Rs. 40,000 but at the same
time it is patently clear that this is a device adopted only to suppress
true expenditure."
Para No. 66 : "What constitutes corrupt practice for the purpose of
the Act have been enumerated under Sec. 123. Therefore in some of
the cases coming up before various High Courts, the question was
whether mere non-furnishing of correct account amounts to corrupt
G
practice and the counts found in the negative. The allegation in the
instant case is not that corrupt practice has been practised by nonfumishing of correct accounts but that itself renders the election void
as it constitutes breach of the provisions of the Act within Sec. I 00".
Para No. 70 : "It therefore follows that even though the Election
H
Commission has power to disqualify a candidate for corrupt practices
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR [SRINIVASAN, J.] 25 J
during election and .also for failure to lodge accounts of election A
expenses it does not necessarily follow that the Election Tribunal has
no jurisdiction to enquire whether Sec. I 00 is attracted or not to void
an election on the ground of non-compliance with the relevant
provisions of the Act. When an election could be voided on the
ground of corrupt-practice there is no reason why it should not be B
and could not be voided for not furnishing correct and true accounts
of the election expenditure when it is mandatory under S. 77(1)& (2)
and S. 100 intends to embrace non-compliance with the provisions of
the Act as also committing of the corrupt practices. There is absolutely
no reason to exclude non-compliance with sub-sections (1) &(2) of
S.77 simply because sub-sec. (3) also falls under the same Sec. 77. Sub C
sec. (3) no doubt covers expenditure of more than the prescribed limit
and that is a self-contained provision of S.77. If the argument that
non-compliance with sub-sections (1)&(2) are not attracted by S.100
is accepted then it puts a premium over non-compliance of proper
accounts only to avoid attraction of sub-sec. (3). If only respondent- D
1 had accounted for the printing and publication of various pamphlets,
advertisement published in Nagamangala Mitra, badges like Ex. P-38,
posters like Ex.P.45, model ballot papers like Exs. P-46 & P-47 and the
postage the Tribunal could have been in a position to know whether
the expenditure incurred has crossed the limit ofRs.40,000. To say the
least, this is another dishonest way of suppressing true expenditure
for ulterior motive. Unless there is honesty in maintaining and
presenting the correct and true accounts it would be impossible to
judge if the requirement of sub-sec. (3) is met or not. In my view
therefore simply because the Election Commission is also empowered
E
to disqualify a candidate for not maintaining correct and true account F
it does not necessarily mean that the Election Tribunal is not called
upon to consider if the election could be voided for that reason under
S.100 of the Act. What is a corrupt practice is defined under S.123 of
the Act and incurring of expenditure of more than the prescribed limit
is one of the such corrupt practices. Therefore, non-furnishing of true G
and proper accounts is a distinct breach under sub-sections (I) and .
(2) of S. 77 attracting the consequences under S. JOO of the Act. It is
apparently clear that respondent- I has invented an ingenious method
of soliciting votes by getting printed pamphlets to promote his
candidature by printing or getting printed them under the names of
different persons who have not come forward to own their publication." H
252
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B
SUPREYIE COURT REPORTS [1998] SUPP. 3 S.C.R.
Para No. 72 : "From the discussion of various factors and aspects
detailed above the irresistible conclusion is that respondent-I is not
honest in keeping the accounts of the election expenses. There is
substance and merit in the contention of the petitioner that what he
spent for postage is not accounted for. It is established that the
pamphlets bearing the postal seals were in fact posted by him or by
his consent. In such case it is rather unthinkable that he did not
spend a single pie on postage. Again irresistible conclusion is that
the pamphlets responsible for his success were got printed by him or
by his consent but the expenditure must be his because none has
come forward to state about to spending for their printing and
C
circulation by post or otherwise. The manner of preparation of Ex. P2(a) and accompanying vouchers show that they were quite casual
. only to follow technical requirements of Sec. 77(1) & (2) of the Act.
This is only a drab formality and giving an impression that it is make
believe. The Election Tribunal which is entrusted with the task of
D
enquiring into the conduct of the candidates in election to maintain
and safeguard its purity cannot ignore the dishonest conduct and
wilful suppression of expenditure to bring the expenditure within the
prescribed limit. It is perhaps for that reason that the Parliament
enacted that breach or violation of the provisions of the Act should
result in voiding the election of the successful candidate. Oral as well
E
as documentary evidence now adduced has established beyond any
controversy that respondent- I suppressed wilfully the expenditure
that he incurred or authorised towards printing of various pamphlets,
badges and advertisements in Nagamangala Mitra and also suppressed
the expenditure incurred towards purchase of postal stamps for
F
despatching them to the voters. Witnesses for petitioner have deposed
that such pamphlets were received by post by some of them and from
these instances it can be inferred that a large number of pamphlets,
badges or leaflets had been circulated by post."
Para No. 75 : "For the reasons aforesaid I hold that the petitioner has
G
proved that true and correct account or expenditure incurred or
authorised was not maintained by respondent-I which amounts to
corrupt practice and for that reason his election deserves to be voided.
Accordingly allowing the petition I declare that the election of ·
respondent- I L.R. Shivaramegowda is void and the same is set aside."
H
9. From the above passages it is clear that the High Court has found
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR [SRINIVASAN, J.] 253
against the contention of the first respondent that the appellant had spent A
for his election more than the prescribed limit for a candidate for Assembly
Constituency. However, the High Court has taken the view that the accounts
of election expenses filed by the appellant before the District Election Officer
were not correct or true and, consequently, the appellant had not complied
with the provisions of Section 77( I )&(2) of the Act with the result, he fell
within the scope of Section 100(1 )(d)(iv) of the Act. It has to be mentioned B
here that while discussing issue Nos. 7 & 8, the High Court has forgotten its
own findings rendered on issues 4, 5 & 6. While under the earlier issues, the
'
High Court has not accepted the case of Respondent No. I that tl\e pamphlets
mentir!1ed therein were printed by or at the instance of the appellant, the
Court has erroneously assumed for the purpose of issues 7 & 8 that the said C
pamphlets were printed by the appellant.
I 0. That apart, it is rightly pointed out by the appellant's counsel that
in order to declare an election to be void under Section IOO(l)(d)(iv), it is
absolutely necessary for the election petitioner to plead that the result of the
election insofar as it concerned there turned candidate had been materially D
affected by the alleged non-compliance with the provisions of the Act or of
the Rules. We have already extracted paragraph 39 of the Election Petition
which is the only relevant paragraph. One will search in vain for an averment
in that paragraph that the appellant had spent for the election an amount
exceeding the prescribed limit or that the result of the election was materially E
affected by the failure of the appellant to give true and correct accounts of
expenditure. In the absence of either averment it was no open to the appellant
to adduce evidence to that effect. It cannot be denied that the two matters
referred to above are material facts which ought to find a place in an election
petition if the election is sought to be set aside on the basis of such facts.
11. This court has repeatedly stressed the importance of pleadings in
an election petition and pointed out the difference between "Material facts"
and "Material particulars." While the failure to plead material facts is fatal to
F
the election petition and no amendment of the pleading could be allowed to
introduce such material facts after the time limit prescribed for filing the G
election petition, the absence of material particulars can be cured at a later
stage by an appropriate amendment. In Shri Ba/wan Singh v. Shri Lakshmi
Narain & Ors .. [1960] 3 SCR 91 the Constitution Bench held that an election
petition was not liable to be dismissed in limine merely because full particulars
of corrupt practice alleged were not set out. On the facts of the case, the
Court found that the alleged corrupt practice of hiring a vehicle for the H
254
SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.
A conveyance of the voters to the polling station was sufficiently set out in the
pleading. The Court pointed out that the corrupt practice being hiring or
procuring of the vehicle for the conveyance of the electors, if full particulars
of conveying by a vehicle of electors to or from any polling stations were
given, Section 83 was duly complied with, even if the partic:ulars of the
B contract of hiring, as distinguished from the fact of hiring were not given.
12. In Samant N. Balakrishna & Anr. v. George Fernandez and Ors.,
[1969] 3 SCC 238 the Court said that ifthe material facts of the corrupt practice
are stated, more or better particulars of the charge may be given later, but
where the material facts themselves are missing, it is impossible to think that
C the charge has been made and later amplified and that would tentamount to
making of a fresh petition.
12A. In Virendra Kumar Saklecha v. Jagjiwan and Ors., [1972] l SCC
826, this Court stressed the importance of disclosure of sources of information
in the affidavit filed along with the election petition. The relevant passage
D reads thus :-
E
F
G
H
"The respondent filed an affidavit along with the election petition.
The affidavit did not disclose the source of information in respect of
the speeches alleged to have been made by the appellant. Section 83
of the Act requires an affidavit in the prescribed form in support of
allegations of corrupt practice. Rule 94-A of the Conduct of Election
Rules, 1961, requires an affidavit to be in Form No. 25. Form No. 25
requires the deponent to State which statements are true to knowledge
and which statements are true to information. Under Section 87 of the
Act every election petition shall be tried by the High Court as nearly
as may be in accordance with the procedure applicable under the
Code of civil Procedure to the trial of suits. Under Section 102 of the
Code, the High Court may make rules regulating their own procedure
and the procedure of the Civil Courts subject to their supervision and
may by such rules vary, alter or add to any of the rules in the First
Schedule to the Code." [Para 1 O]
"The importance of setting out the source of information in
affidavits came up for consideration before this Court from time to
time. One of the earliest decisions is State of Bombay v. Parshottam
Jog Naik, where this Court endorsed the decision of the Calcutta
High Court in Padmabati Dasi v. Rasik Lal Dhar, and held that the
sources of information should be clearly disclosed. Again in Barium
L.R. SHIVARAMAGOWDA v. T.M. CHANDRASHEKAR [SRINIVASAN, J.] 255
Chemicals Ltd. and Another v. Company Law Board and Others., this A
Court deprecated 'slip shod verifications' in an affidavit and reiterated
the ruling of this Court in Bombay case (Supra) that verification
should invariably be modelled on the lines of Order 19, Rule 3 of the
Code 'Whether the Code applies in terms or not'. Again, in A.KK
Nambiar v. Union of India, this Court said that the importance of
verification is to test the genuineness and authenticity of allegations B
and also to make the deponent responsible for allegations". [Para 13]
"Counsel on behalf of the appellant contended that non-disclosure of
the sources of information in the affidavit was a fatal defect and the
petition should not have been entertained. It is not necessary to C
express any opinion on that contention in view of the fact that the
matter was heard for several months in the High Court and thereafter
the appeal was heard by this Court. The grounds or sources of
information are to be set out in an affidavit in an election petition.
Counsel on behalf of the respondent submitted that the decisions of
this Court were not on election petitions. The rulings of this Court D
are consistent. The grounds or sources of information are to be set
out in the affidavit whether the Code applies or not. Section 83 of the
Act states that an election petition shall be verified in the manner laid
down in the Code. The verification is as to information received. The
affidavit is to be modelled on the provisions contained in Order 19 of E
the Code. Therefore, the grounds or sources of information are required
to be stated." [Para 14]
"The non-disclosure of grounds or sources of information in a
election petition which is to be filed within forty-five days from the
date of election of the returned candidate, will have to be scrutinised F
from two points of view. The non-disclosure of the grounds will
indicate that the election petitioner did not come forward with the
1sources of information at the first opportunity. The real importance of
setting out the sources of information at the time of the presentation
of the petition is to give the other side notice of the contemporaneous
evidence on which the election petition is based. That will give an G
opportunity to the other side to test the genuineness and veracity of
the petitioner will not be able to make any departure from the sources
or grounds, if there is any embellishment of the case it will be
discovered." [Para 15]
13. In Shri Udhav Singh V. Madhav Rao Scindia, [1977] 1 sec 511, H
256
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B
c
D
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SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.
a Division Bench of this Court explained the distinction between
material facts and material particulars as follows :·
"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
(lXa).
"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 (i) 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).