# ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR - **Citation:** [2009] 14 S.C.R. 10 - **Court:** Supreme Court of India - **Decided:** 2009-08-20 - **Case number:** Civil Appeal No. 5679 of 2009 - **Bench:** Dalveer Bhandari, Harjit Singh Bedi - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anil-vasudev-salgaonkar-v-naresh-kushali-shigaonkar-25192 - **Pages:** 30 ## Headnote Representation of the People Act, 1951: + c Sections 77, 83, 100, 123 - Election - Election to Legislative Assembly - Election Petition challenging the election of the returned candidate - Allegation of corrupt practice - ·Election Petition allowed by the High Court - On .. / appeal, Held: All those facts which are essential to clothe the D election petitioner with a complete cause of action are material .., facts which must be pleaded and failure to place even a single .... material fact amounts to disobedience of the mandate of Section 83(1)(a) - On facts the election petition read as a whose does not disclose any cause of action - Conduct of E Election Rules, 1961 - Rule 94A ·-Code of Civil Procedure, 1908, Order 6 Rule 113i Order 7 Rule 11(a) . . Words & Phrases: .f "Material facts" - Meaning of in the context of tF Representation of the People Act, 1951. The appellant was the returned candidate from a legislative ·constituency, having secured 10705 votes out of the total 19657 votes polled. Respondent who had secured only 275 votes filed an election petition G challenging the election of appellant on the grounds that in seven villages in his constitue_l'_lcy the appellant got 13 bore wells constructed at his own cost; and also provided ambulances to five villages and for the abovesaid alleged corrupt practices the appellant had incurred expenditure H 10 ~ ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 11 SHIGAONKAR ,. crossing the limit of Rs.5,00,000/- prescribed under the A }- Act and the Rules, and that these were done after issuance of election Notification. The High Court concluded that the election petition read as a whole disclosed material facts and allowed the election petition . . Hence the appeal. B Allowing the appeal, the Court HELD: 1.1. There are no averments to the effect whether such bore holes were dug with the consent andJ or active knowledge of the appellant. The estimates of c cost involved supplied in the election petition are also limited to the cost of drilling the bore holes and not of installing the water drawing plant and machinery in them to draw water from the bore holes. As such, the said ,.. pleading is totally general and vague in nature: [Para 10) D .. [19-A-B] 1.2. There are absolutely no averments with regard to which villagers or electors had used such ambulances and for whose benefit such ambulances were deploye~ E so as to constitute 'bribe' to the voters and that to an extent that would have influenced the outcome of the election. It is stated that any company operating mines on large scale with heavy machinery is under a statutory duty to maintain safety at the mines and is, as such, F statutorily required to provide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons workin~ at these mines. The various mines of Salgaoncar Mining Industries ... are spread over large areas falling in the G constituency. The petition is absolutely devoid of any averment with regard to such ambulances being specifically deployed for the benefit of any elector in the constituency much less a number of electors who would have benefited from such service even if not admitted but proved to be true that could have influenced the election H 12 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R. " A so as to change its outcome. [Paras 12. and 13] [19-F-H; 20-A-B] -f 1.3. The respondent has failed to give particulars regarding parking of the ambulances i.e. where the~e B ambulances were parked; in which villages they were parked; whether there was any driver to drive the said ambulances and as to where they were parked. Similarly, . the respondent failed to give particulars regarding the + bore wells whose cost as alleged amounts to Rs.6,38,557/ c -. Similarly, expenditure_ of Rs.12,50,000/- has been alleged to have been made for the ·purchase of ambulances. The particulars have not been provided. It is not clear as to how the respondent has come t ## Text _Characters 0–39,724 of 54,465. This is a partial read: ask again with offset=39724 for what follows._ [2009] 14 (ADDL.) S.C.R. 10 A ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI SHIGAONKAR (Civil Appeal No. 5679 of 2009) ,. B AUGUST 20, 2009 [DALVEER BHANDARI AND HARJIT SINGH BEDI, Jj,J Representation of the People Act, 1951: + c Sections 77, 83, 100, 123 - Election - Election to Legislative Assembly - Election Petition challenging the election of the returned candidate - Allegation of corrupt practice - ·Election Petition allowed by the High Court - On .. / appeal, Held: All those facts which are essential to clothe the D election petitioner with a complete cause of action are material .., facts which must be pleaded and failure to place even a single .... material fact amounts to disobedience of the mandate of Section 83(1)(a) - On facts the election petition read as a whose does not disclose any cause of action - Conduct of E Election Rules, 1961 - Rule 94A ·-Code of Civil Procedure, 1908, Order 6 Rule 113i Order 7 Rule 11(a) . . Words & Phrases: .f "Material facts" - Meaning of in the context of tF Representation of the People Act, 1951. The appellant was the returned candidate from a legislative ·constituency, having secured 10705 votes out of the total 19657 votes polled. Respondent who had secured only 275 votes filed an election petition G challenging the election of appellant on the grounds that in seven villages in his constitue_l'_lcy the appellant got 13 bore wells constructed at his own cost; and also provided ambulances to five villages and for the abovesaid alleged corrupt practices the appellant had incurred expenditure H 10 ~ ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 11 SHIGAONKAR ,. crossing the limit of Rs.5,00,000/- prescribed under the A }- Act and the Rules, and that these were done after issuance of election Notification. The High Court concluded that the election petition read as a whole disclosed material facts and allowed the election petition . . Hence the appeal. B Allowing the appeal, the Court HELD: 1.1. There are no averments to the effect whether such bore holes were dug with the consent andJ or active knowledge of the appellant. The estimates of c cost involved supplied in the election petition are also limited to the cost of drilling the bore holes and not of installing the water drawing plant and machinery in them to draw water from the bore holes. As such, the said ,.. pleading is totally general and vague in nature: [Para 10) D .. [19-A-B] 1.2. There are absolutely no averments with regard to which villagers or electors had used such ambulances and for whose benefit such ambulances were deploye~ E so as to constitute 'bribe' to the voters and that to an extent that would have influenced the outcome of the election. It is stated that any company operating mines on large scale with heavy machinery is under a statutory duty to maintain safety at the mines and is, as such, F statutorily required to provide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons workin~ at these mines. The various mines of Salgaoncar Mining Industries ... are spread over large areas falling in the G constituency. The petition is absolutely devoid of any averment with regard to such ambulances being specifically deployed for the benefit of any elector in the constituency much less a number of electors who would have benefited from such service even if not admitted but proved to be true that could have influenced the election H 12 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R. " A so as to change its outcome. [Paras 12. and 13] [19-F-H; 20-A-B] -f 1.3. The respondent has failed to give particulars regarding parking of the ambulances i.e. where the~e B ambulances were parked; in which villages they were parked; whether there was any driver to drive the said ambulances and as to where they were parked. Similarly, . the respondent failed to give particulars regarding the + bore wells whose cost as alleged amounts to Rs.6,38,557/ c -. Similarly, expenditure_ of Rs.12,50,000/- has been alleged to have been made for the ·purchase of ambulances. The particulars have not been provided. It is not clear as to how the respondent has come to the figure of ,-. Rs.5,00,000/- which according to him has been spent by D the appell~nt. He did not give any particulars regarding y either of the bore wells or the ambulances. [Para 20] [22- ' 8-D] 1.4. In tha impugned judgment, the High Court erroneously concluded that the election petition when E read as a whole discloses that it has material facts stated and regarding which ti i( laid down that all facts necessary to formulate a complete · Iicause of action should be termed as "material facts". All basic and primary facts which must be proved by a party D 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. [Para 63] [37-D-F] ' E 2.4. 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 is bound to substantiate before he can succeed on that charge. It is also well-settled that if F "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. [Para 65] [38-D] 2.5. According to the appellant, in the election petition, there was no averment whether the bore wells G were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative 1 and the failure to mention such an important averment in the petition is fatal for the election-petitioner and the H 14 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. --! ' A election petition is liable to be summarily dismissed on that ground. [Para 66) [38-E-F] ,_ ,, 2.6. The legal position has been crystallized by a series of judgments of this Court that all those facts B 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 Ac;t. [Para 67) [38-G-H] c 2.7. In the instant case, the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action. Considering the facts .. ,·l and circumstances of this case and principles applicable y to the election petition, this appeal deserves to be D allowed. [Para 68) [39-A-B] Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315; Hardwari Lal v. Kanwa/ Singh (1972)1 SCC 214; Udhav Singh v. Madhav Rao Scindia (1977) 1 sec 511; v. E Narayanaswamy v. C.P. Thirunavukkarasu (2000) 2 SCC 294; LR. Shivaramagowda & Others v. T.M. Chandrashekar 1 (dead) by LRs & Others (1999) 1 SCC 666; Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi & Others (2005) 5 SCC 46; Harkirat Singh v. Amrinder Singh (2005) 13 SCC F 511 and Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC 604, relied on. H.D. Revanna v. G. Puttaswamy Gowda & Others (1999) 2 SCC 217; Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp. SCC 93; Manubhai Nandlal Amorsey v. G Popat/a/ Manila/ Joshi & Others (1969) 1 SCC 372 and )' Samant N. Balkrishna & Another v. George Fernandez & Others (1969) 3 SCC 238, referred to. Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB 135 H ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 15 .. SHIGAONKAR and Bruce v. Odhams Press Ltd. (1936) 1 KB 697: (1936) 1 A All ER 287 (CA), referred to. Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, referred to. Case Law Reference: B + 1986 (Supp) sec 315 relied on Para 10 (1999) 2 sec 211 relied on Para 10 ' (1987) Supp. sec 93 referred to Para 25 c (1878) 4 QBD 127: ~ 48 LJ QB 135 referred to Para 43 (1936) 1 KB 697: (1936) 1 All ER 287 (CA) referred to Para 44 D (1969) 1 sec 372 referred to Para 47 (1969) 3 sec 238 referred to Para 48 (1972)1 sec 214 relied on Para 49 E ~" .( (1977) 1 sec 511 relied on Para 54 c2000) 2 sec 294 relied on Para 55 • (1999) 1 sec 666 relied on Para 56 F (2005) 5 sec 46 relied on Para 59 c2005) 13 sec 511 relied on Para 60 c2008) 1 sec 604 relied on Para 61 ~ G CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos. 5679 of 2009. -, From the Judgment & Order dated 4.7.2008 of the High H 16 SUPREMECOURT REPORTS [2009] 14 (ADDL.) S.C.R. A Court of Judicature at Bombay at Panaji-Goa, in Election Application No. 5 of 2007 in Election Petition No. 1 of 2007. Raju Ramachandran, Nikhil Majithia, Pragati Neekhra for the Appellant. B Ranjit Kumar, Prashant Shukla, Aabhas Parimal (for Binu Tamta) for the Respondent. + The Judgment of the Court was delivered by c DALVEER BHANDARI, J. 1. Leave granted. 2. This appeal is directed against the judgment and order of the High Court of Bombay Bench at Goa passed in Election Application No.5 of 2007 in Election Petition No.1 of 2007 on 'f' 4th July, 2008. D 3. The respondent herein has filed an election petition in the High Court of Bombay at Goa challenging the election of the appellant (respondent no.1 in the election petition) to Goa Legislative Assembly from 35 Sanvordem Assembly E Constituency. In the assembly elections held on 2nd June, 2007, the appellant secured overwhelming mandate from the + electorates securing 10705 votes out of total 19657 votes polled whereas, his nearest rival (respondent no.2 in the election petition) set up by the Bharatiya Janata Party secured F only 3782 votes and the respondent (election petitioner) polled only 275 votes and forfeited his deposits. In the election petition before the High Court, a prayer has been made to declare the election of the appellant herein as null and void on ground of corrupt practices 'in which the appellant indulged during the G elections. The allegations in the petition are as under: y (i) The returned candidate with an intent to secure the votes of the voters of his constituency got 13 bore wells constructed at his own cost in the seven / ,, villages of the\ said constituency; H ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 17 ~ SHIGAONKAR [DAL'(EER BHANDARI, J.] lo. (ii) The returned candidate had also provided A ambulances to the villages namely Collem, Sanvordem, Mollem, Dharbandora and Khirpal Dabhal as a part of his action in luring voters to vote in his favour. B 4. It has also been alleged that the appellant indulged in the abovementioned corrupt practices and incurred election r expenditure in contravention of section 77 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") thereby crossing the limit of Rs.5,00,000/- prescribed under the c Act and the Rules framed thereunder. 5. The written statement to the election petition was filed by the appellant in the High Court. The allegations mentioned --...- in the election petition were specifically refuted and denied in the written statement. Apart from number of preliminary 0 objections, it was stated by the appellant that the election petition does not comply with the provisions of Chapter II of the Act and is, therefore, required to be dismissed at the threshold. 6. The appellant also stated in the written statement that E the election petition does not contain a concise statement of + the material facts on which the respondent relies and, therefore, '" the petition does not comply with clause (a) of sub-section (1) of section 83 of the Act. It was also incorporated in the written statement that the election petition does not set forth the F material facts of the alleged corrupt practice. The respondent herein has also failed to disclose the names of the parties alleged to have committed the corrupt practice. Ir. the election petition, the date and place of the commission of such alleged corrupt practice has not been mentioned and. therefore, the I election petition deserved to be dismissed as not maintainable. G )-- 7. In the written statement it was also stated that the .. appellant secured 10705 votes whereas the respondent (election petitioner) got only 275 votes. The margin is too huge to state that the candidate has been returned on account of . H 'i i 18 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. I " \ A some alleged corrupt practice. The respondent in the election. .4 petition is required to show that the candidate has been elected and that the result of the election has been materially affected by any alleged corrupt practice committed as such. B 8. The allegations of alleged corrupt practices pleaded by respondent (election petitioner) are limited to digging of 13 bore wells in villages falling under the constituency in question after issuance of the election notification. The basis for this ,. allegation is that the machinery allegedly used to dig bore holes c in the ground as mentioned in paragraph 16 of the election petition was the same machinery owned by a third party which was hired in the past to work for the Salgaoncar Mining ; Industries at Vagus valley. The respondent in paragraph 16 of the election petition has also averred that the owner of the Salgaoncar Mining Industries is the appellant herein and on this y D sole basis the conclusion is sought to be drawn and averment : made to the effect that it is obvious that the cost of the said wells and the other wells were borne by the returned candidate through his business concern, namely, Salgaoncar Mining • Industries. E 9. The pleadings of the said allegations of corrupt practice are limited to digging of bore wells only and there is no pleading 1 on the material facts whether any water drawing equipment was i; installed in the said bore holes so dug and that such bore holes F became water bore wells and that the water could be drawn from them. Neither any facts have been pleaded nor particulars given to. the effect of how and in what manner the voters were .' ' influenced in favour of the appellant so as to cast votes in his favour. No particulars of such voters have been given in the G election petition. As such there is total absence of material pleadings so as to prove that due to the alleged corrupt practice -'( the election has been vitiated in a manner that but for such bore . .._ holes not being dug the appellant would not have been returned as a winning candidate and either respondent herein or ~ H respondent no.2 of the election petition could have been ,, >- ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 19 SHIGAONKA~ [DALVEER BHANDARI, J.) $<. returned as a winning candidate. A 10. There are no averments to the effect whether such bore holes were dug with the consent and/or active knowledge of the appellant. The estimates of cost involved supplied in the election petition are also limited to the cost of drilling the bore 8 holes and not of installing the water drawing plant and machinery in them to draw water from the bore holes. As such, ,.. the said pleading is totally general and vague in nature and is entirely incapable of passing the muster of the test as laid in the Azhar Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315 or c such facts as are pleaded in the petition are capable of being - later on amplified in view of the test laid down in H.O. Revanna v. G. Puttaswamy Gowda & Others (1999) 2 SCC 217 so as to arrive at a conclusion that a triable case is made out. ~ 11. The second allegation of the alleged corrupt practice D is to the effect that the appellant herein has, in the name of his mining company viz. Mis Salgaoncar Mining Industries Pvt. Ltd. Vagus, Palem, Bicholim, Goa, bought 5 Maruti Ambulances from M/s Sai Service Station Ltd., Verna, Salcete, Goa by incurring a cost of Rs.2,50,000/- for each of the ambulances and the cost of the 5 ambulances approximately would be a E _.. sum of Rs.12,50,000/- and once the said elections were declared and he filed his nomination for the said election, caused the said company to put the said ambulances at the disposal of the villagers of the said villages. F 12. There are absolutely no averments with regard to which villagers or electors had used such ambulances and for whose benefit such ambulances were deployed so as to constitute 'bribe' to the voters and that to an extent that would have influenced the outcome of the election. It is stated that any G 't company operating mines on large scale with heavy machinery is under a statutory duty to maintain safety at the mines and is, as such, statutorily required to provide required facilities including deployment of ambulances in adequate numbers at various mines to ensure safety of the persons working at these H 20 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R. A mines. The·various mines of Salgaoncar Mining Industries are spread over large areas falling in the constituency. 13. The petition is absolutely devoid of any averment with regard to such ambulances being specifically deployed for the B benefit of any elector in the constituency much less a number of electors who would have benefited from such service even if not admitted but proved to be true that could have influenced the election so as to change its outcome. i'- 14. There are absolutely no averments to the effect that c these ambulances were deployed at which specific place, at which specific time and for the benefit of whom and whether at the instance or with knowledge of the appellant. As such, the said pleading is incapable of passing the test as laid in the ~ Azhar Hussain's case (supra) or such facts as are pleaded in D the petition are capable of being later on amplified in view of the test laid down in H.D. Revanna's case (supra) so as to arrive at a conclusion that a triable case is made out. 15. The third allegation pertains to the election expenses E incurred by the appellant on the basis that amount spent on digging of bores holes as well as the cost of 5 ambulances deployed for discharge of statutory requirements for carrying out mining operations by a company ought to be calculated towards the election expenses incurred by the appellant and, F as such, devoid of any merit in view of the insufficiency of pleadings in terms of 'material facts' with respect to the two main allegations of corrupt· practices relating to digging of borewells and 5 ambulances. 16. The High Court has totally misdirected itself by G misconstruing the ratio laid down in a catena of decision p~onounced by this Court including the law laid down in Azhar Hussain's case (supra) and H.D. Revanna's case (supra) which if properly applied to the facts and circumstances of the present case would lead to rejection of the election petition in H limine. - ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 21 SHIGAONKAR [DALVEER BHANDARI, J.] ._ 17. The other important questions of law of general A importance involved in the present petition require adjudication by this Court are whether amenities or facilities provided in general and not in particular to a candidate or his agent or by any other person with the consent of the candidate, is a corrupt practice or a bribery or a gratification within the meaning of B section 100( 1 )(b) read with section 123( 1) of the Act. Whether the absence of the prescribed affidavit in Form 25 as required -r under Rule 94A of the Conduct of Election Rules, 1961 and in terms of proviso to section 83 of the Act is fatal to the maintainability of an. election petition on the ground of corrupt C practices? 18. In the election petition the respondent has mentioned that. there was scarcity of water supply in certain villages. However, the respondent has failed to mention the numbers of houses which face such alleged water scarcity. In the written D statement, the appellant also alleged that the respondent in the election petition has also failed to mention about water availability of these villages; the respondent has further failed to mention as to since when has there been water scarcityJ. 19. The appellant in the written statement further alleged that the respondent has also not mentioned as to how many houses are there in these villages; how many persons are living E in each of the houses; and how many persons are voters in these villages. The respondent has also not mentioned as to F how many villages have water connections; and when and ,where the water scarcity had been noticed in these villages. He has also not mentioned as to when this complete breakdown or insufficient water supply had occasioned to these villages nor has he mentioned the date, time, place or any other details G of such breakdown and has generally failed to give the details as required under section 83 of the Act. 20. In the written statement it was also stated that the drilling machines allegedly owned by Tejaswini Bore Wells which were being operated at Ambeudok. There is, therefore, H 22 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. _. A no concrete evidence that the boreholes drilled were bore wells to establish the flow of water from the ground table to surface ground. Similarly, the respondent has miserably failed to give particulars as to which villages did not have ambulances and what was the number of voters in the said villages .. The 8 respondent has failed to give particulars regarding parking of the ambulances i.e. where these ambulances were parked; in which villages they were parked; whether there was any driver 1' to drive the said ambulances and as to where they were parked. Similarly, the respondent failed to give particulars regarding the c bore wells whose cost as alleged amounts to Rs.6,38,557/-. Similarly, expenditure of Rs.12,50,000/- has been alleged to have been made for the purchase of ambulances. The particulars have not been provided. It is not clear as to how the respondent has come to the figure of Rs.5,00,000/- which D according to him has been spent by the appellant. He did not give any particulars ·regarding either of the bore wells or the ambulances. 21. 'The appellant denied crossing the limit of Rs.5,00,000/ - as prescribed under the Act and the Rules framed thereunder. E It is also alleged that the appellant did not construct any bore wells nor did he provide any ambulances to the villagers and, +- therefore, the question of showing the same in the election expenses did not· arise at all. The appellant denied that an amount of Rs.6;38,557/- and an amount of Rs.12,50,000/- as F alleged has been the expenditure factually incurred by the appellant and denied having committed any corrupt practice. The question of the election results being materially affected does not arise at all and, therefore, the election petition is liable to be dismissed. G 22. It was specifically argued that the election petition is liable to be dismissed because there has been non compliance of section 83( 1) of the Act because there was no sufficiency and adequacy of pleadings in the election petition. Section H 83(1) of the Act reads as under: ' ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 23 SHIGAONKAR [DALVEER BHANDARI, J.] ,).. 83. Contents of petition.-(1) An election petitionA (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 B 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 (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 D 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.,,,, 23. According to the appellant, the High Court had erroneously held that the election petition is not liable to be E dismissed in limine under section 86 of the Act for alleged noncompliance of the provisions of section 83(1) of the Act. · 24. In the impugned judgment, the High Court erroneously concluded that the election petition when read as a whole F -. discloses that it has material facts stated and regarding which triable issues are also framed and, therefore, it cannot be rejected at the preliminary stage. 25. The High Court in the impugned judgment has discussed the decision of this Court in Dhartipakar Madan Lal G Agarwal v. Rajiv Gandhi (1987) Supp. SCC 93. According to the appellant, the High Court erroneously distinguished this case. The impugned judgment of the High Court is neither in consonance with the provisions of the Act nor according to the settled legal position as has been crystallized in a number of H 24 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. A cases by this court. ~. 26. Being aggrieved by the impugned judgment, the appellant has preferred this appeal. B 27. In ~,his election petition, respondent no.1 has challenged appellant's election primarily on the ground of corrupt practices, alleging that the appellant dug bore wells in the constituency and provided ambulances after the election notification was -y issued in order to lure the voters from the constituency or induce them to vote for the appellant. According to the appellant, the c aforesaid allegations do not even on their face value constitute corrupt practices within the meaning of Section 100 or section 123 of the Act. The Act postulates or contemplates bribery to mean any gift, offer or promise by a candidate of any gratification with the object, directly or indirectly of inducing any erD elector in order to make him vote for him. 28. For reference, section 100 and section 123 of the 1951 Act read as under:- E "Section 100 - 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 F 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 G returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or H (d) that the result of the election, in so far as it concerns a ANIL VASUDEV SALGAONKAR v. NARESH 25 . KUSHALI SHIGAONKAR [DALVEER BHANDARI, J.) returned candidate, has been materially affectedA (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 B 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 c 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. ... D (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 E 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; (b) omitted F (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 G ; corrupt practice on the part of the candidate or any of his I "?" agents, • ,then the High Court may decide that the election of the re~urned candidate is not void". H I 26 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. A "Section 123 - Corrupt practices - The following shall be deemed to be corrupt practices for the purposes of this Act:- B c D E F G H (1) "Bribery" that is to say- (A) any gift offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the objects, directly or indirectly of inducing- (a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to- (i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting; (8) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward- (a) by a person for standing or not standing as, or for [withdrawing or not withdrawing] from being, a candidate; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature." 29. The appellant submitted that corrupt practices pleaded by respondent no.1 are limited to digging of 13 bore wells in villages falling under the constituency in question after notification of holding of election was issued. The basis for this ~ • ".... .. " -, ANIL VASUDEV SALGAONKAR v. NARESH 27 KUSHALI SHIGAONKAR [DALVEER BHANDARI, J.] .,, allegation that the machinery allegedly used to dig bore holes A in the ground as provided in paragraph 16 of the election petition and the same machinery owned by a third party which was hired in the past to work for the Salgaoncar Mining Industries at Vagus Valley. 30. Respondent no.1 in paragraph 16 of the election B petition has alleged that owner of the Salgaoncar Mining Industries is the appellant herein and on this basis the· conclusion is sought to be drawn and the averments made to· the effect that "it is obvious that the cost of the said wells and c the other wells were borne by the returned candidate through his business concern, namely Salgaoncar Mining Industries". -I_ 31. According to the appellant, the pleadings in the election petition regarding corrupt practice are li11Jited to digging of bore - wells only and there is no pleading on the material facts whether D and in what manner the voters of the constituency were · influenced to vote in favour of the appellant-There is no pleadings on the material facts whether any water drawing equipment was installed in the said bore holes so dug and that such bore holes became water bore wells and that the water E ~. could be drawn from them. 32. The appellant submitted that there is total absence of material pleadings so as to prove that due to the alleged· corrupt practice the election has been vitiated in a manner that such F bore holes not being dug by the appellant who has been returned as a winning candidate and either respondent no.2 or respondent no.1 could have been returned as a winning candidate. 33. The material fact whether such bore holes were dug G with the consent and/or active knowledge of the appellant is totally missing. 34. The material fact regarding the estimates of costs involved is missing and is limited to the costs of drilling the bore H ' ,, 28 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. 4 . A holes and not qt installing the water drawing plant and ~ machinery in them to draw water from the bore holes. According to the appellant, the said pleading is totally general and vague in nature. B 35. The second allegation is regarding the alleged corrupt practice by purchasing 5 Maruti Ambulances in the name of his mining company viz. M/s Salgaoncar Mining Industries Pvt.Ltd . . 36. According to the appellant, there are no material facts in the pleading of the election petition that for whose benefit c such ambulances were deployed so as to constitute a 'bribe' to the voters and that to an extent that would have influenced the outcome of the election. 37. The appellant also submitted that there are no r D averments with regard to such ambulances being specifically ...... deployed for the benefit of any elector in the constituency. 38. The appellant submitted that any company operating mines on large scale with heavy machinery is under an E obligatory duty to maintain safety of the mines and is, as such, statutorily required to j;"liOVide required facilities including deployment of ambulances in adequate numbers at various /.- mines to ensure safety of the persons working in the mines. The various mines of Salgaoncar Mining Industries are spread over large areas falling in the constituency. F 39. According to the appellant there is no material fact in the pleading of the election petition to the effect regarding the deployment of such ambulances at which specific places at which specific time and for the benefit of whom and whether G that was done at the behest and influence of the appellant. 40. According to the appellant, the third allegation pertains -1· to the election expem~es incurred by the appellant on the basis of that amount spent on digging of bore holes as well as the - H cost of 5 ambulances deployed for discharge for statutory requirement for carrying out mining operations by a company r -... - ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 29 SHIGAONKAR [DAL\~EER BHANDARI, J.] ).. ought to be calculated towards the election expenses incurred A by the appellant is devoid of any merit in view of the insufficiency of pleadings in terms of 'material facts' with respedt to the two main allegations of corrupt practices relating to digging of bore holes and purchase of 5 ambulances. 41. According to the appellant, the High Court in the 8 impugned judgment has totally misdirected itself by misconstruing the ratio laid down in a catena of cases pronounced by this Court. The other material questions of general importance arising in the petition for determination by c this court are whether amenities or facilities provided in general and not in particular by a candidate or his agent or by any other person with the consent of the candidate, is a corrupt practice -t or a bribery or a gratification within the meaning of section 100 - (1)(b) read with section 123 (1) of the 1951 Act. According to D the appellant, the re~pondent did not furnish affidavit in Form 25 as required under Rule 94A of the Conduct of Election Rules, 1961 and in terms of proviso to Section 83 of the Act, is fatal to the maintainability of an election petition on the ground of corrupt practices. E ~. 42. According to the appellant, the respondent failed to plead the fact which constitutes an offence under section 100 of the Act and the appeal deserves to be allowed and the election petition deserves to be dismissed. 43. The short question which falls for adjudication in this F case is whether the election petition is liable to be dismissed because of lack of material facts. This controversy is no long res integra. More than a century ago, in Phillips v. Phillips, (1878) 4 QBD 127: 48 LJ QB 135, Cotton, L.J. stated: G )- "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 -4 defendants, should state those facts which will put the defendants on their guard and tell them what they have to H .. t- 30 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. A meet when the case comes on for trial." 44. In Bruce v. Odhams Press Ltd. (1936) 1 KB 697: (1936) 1 All ER 287 (CA), Scott, L.J. referring to Phillips' case (supra) observed: B "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' c in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or 'a further and better statement of claim' may be ordered under Rule 7." 1D 45. In Halsbury's Laws of England (4th Edn.), Vol. 36, para 38, it has been stated: Ji "38. The function of particulars is to carry into operation the overriding principle that the litigation between E the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, Jt.- namely, either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is F entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent's case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for G the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the -J ' trial without obtaining the leave of the court." 46. When we revert to the Indian cases, we find that our H courts have accepted the principle laid down by the English ANIL VASUDEV SALGAONKAR v. NARESH KUSHALI 31 SHIGAONKA~ [DALVEER BHANDARI, J.] )-_ cases. We would like to refer to some of them. A 47. In Manubhai Nand/al Amorsey v. Popat/al Manila/ Joshi & Others (1969) 1 SCC 372, this Court observed as under: "5. The first question is whether the trial judge should have B allowed the amendment. Section 83(1)(b) provides that + "An election petition 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 commit such corrupt practice and the date and c place of the commission of each such practice". The section is mandatory ................. " ...\ 48. In Samant N. Balkrishna & Another v. George Fernandez & Others (1969) 3 SCC 238, this Court observed D as under: "37.