# ' HARKIRA T SINGH v. AMARINDER SINGH

- **Citation:** [2005] Supp. 5 S.C.R. 817
- **Court:** Supreme Court of India
- **Decided:** 2005-12-16
- **Case number:** Civil Appeal No. 845 of2005
- **Bench:** Y.K. Sabharwal, C.K. Thakker, P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harkira-t-singh-v-amarinder-singh-20872
- **Pages:** 34

## Headnote

Representation of the People Act, 1951: Section 12 3.
A
B
Corrupt Practice-Election petition-Material facts-Disclosure of- C
Election to State legislative Assembly--Elector of the constituency filed an
election petition challenging election of the returned candidate on ground
of corrupt practice-Government servant holding Class I gazetted post
allegedly helped the returned candidate immensely during his election
campaign--A Press Conference was allegedly organized for the returned D
candidate for enhancing his election prospects-High Court dismissed the
Elec:tion Petition on the ground that the petitioner had failed to disclose
'material facts' as to corrupt practice constituting the cause of actionCorrectness of-Held: 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-It is absolutely E
essential that all basic and primary facts which must be proved at the trial
hy the party to establish the existence of a cause of action or de.fence are
material facts and must be stated in the pleadings by the party-Jn the
present case, 'material facts' of corrupt practice said to have been adopted
hy the returned candidate had been set out in the petition with full F
particulars-It has been expressly stated as to how the named Government
servant assisted the returned candidate by doing several acts, as to complaints
made against him by the authorities and taking of disciplinary actionhence, High Court was wholly unjustified and rejecting the petition on the
ground that material facts had not been set out in the election petition and
that the election petition did not disclose a cause of action-Code of Civil G
Procedure, 1908, 0. VJ R.2.
Section 83-'Material facts' and 'Particulars '-Distinction betweenExplained .
817
H
818
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.
A
Words and Phrases:
"Material facts "-Meaning of-In the context of S. 83 of the
Representation of the People Act, 1951.
The appellant was an elector in the constituency from which the
B respondent was declared elected to the State Legislative Assembly. The
appellant filed an Election Petition in the High Court under Section 81 of the
Representation of the People Act, 1951 questioning the election of the
respondent on the ground of corrupt practice as enumerated in Section 123
of the Act. It was alleged that a Government Servant holding Class I gazetted
post helped the respondent immensely during his election campaign. The said
C Government servant allegedly organized a Press Conference for the
respondent for enhancing his election prospects.
High Court dismissed the Election Petition on the ground that the
petitioner had failed to disclose 'material facts' as to corrupt practice
D constituting the cause of action in the election petition. Hence the appeal.
Allowing the appeal, the Court
HELD: 1. An election petition must contain a concise statement of
'material facts' on which the petitioner alleges including a full statement of
E the 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 for the verification of pleadings. It should be
accompanied by an affidavit in the prescribed from in support of allegation of
such practice and particulars thereof. (835-D, E)
F
G
H
2. All material facts, thereof, in accordance with the provisions of the
Representation of the People Act, 1951 have to be set out in the election
petition. If the material facts are not stated in petition, it is liable to be
dismissed on that ground as the case would be covered by Section ·83(1)(a) of
the Act read with Rule ll(a) of Order VII of the Code. (835-FJ
3. The expression 'material facts' has neither been defined in the Act
nor i~ the Code. According to the dicti

## Text

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,'
HARKIRA T SINGH
v.
AMARINDER SINGH
DECEMBER 16, 2005
(Y.K. SABHARWAL, C.J., C.K. THAKKER AND
P.K. BALASUBRAMANYAN, JJ.]
Representation of the People Act, 1951: Section 12 3.
A
B
Corrupt Practice-Election petition-Material facts-Disclosure of- C
Election to State legislative Assembly--Elector of the constituency filed an
election petition challenging election of the returned candidate on ground
of corrupt practice-Government servant holding Class I gazetted post
allegedly helped the returned candidate immensely during his election
campaign--A Press Conference was allegedly organized for the returned D
candidate for enhancing his election prospects-High Court dismissed the
Elec:tion Petition on the ground that the petitioner had failed to disclose
'material facts' as to corrupt practice constituting the cause of actionCorrectness of-Held: 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-It is absolutely E
essential that all basic and primary facts which must be proved at the trial
hy the party to establish the existence of a cause of action or de.fence are
material facts and must be stated in the pleadings by the party-Jn the
present case, 'material facts' of corrupt practice said to have been adopted
hy the returned candidate had been set out in the petition with full F
particulars-It has been expressly stated as to how the named Government
servant assisted the returned candidate by doing several acts, as to complaints
made against him by the authorities and taking of disciplinary actionhence, High Court was wholly unjustified and rejecting the petition on the
ground that material facts had not been set out in the election petition and
that the election petition did not disclose a cause of action-Code of Civil G
Procedure, 1908, 0. VJ R.2.
Section 83-'Material facts' and 'Particulars '-Distinction betweenExplained .
817
H
818
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.
A
Words and Phrases:
"Material facts "-Meaning of-In the context of S. 83 of the
Representation of the People Act, 1951.
The appellant was an elector in the constituency from which the
B respondent was declared elected to the State Legislative Assembly. The
appellant filed an Election Petition in the High Court under Section 81 of the
Representation of the People Act, 1951 questioning the election of the
respondent on the ground of corrupt practice as enumerated in Section 123
of the Act. It was alleged that a Government Servant holding Class I gazetted
post helped the respondent immensely during his election campaign. The said
C Government servant allegedly organized a Press Conference for the
respondent for enhancing his election prospects.
High Court dismissed the Election Petition on the ground that the
petitioner had failed to disclose 'material facts' as to corrupt practice
D constituting the cause of action in the election petition. Hence the appeal.
Allowing the appeal, the Court
HELD: 1. An election petition must contain a concise statement of
'material facts' on which the petitioner alleges including a full statement of
E the 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 for the verification of pleadings. It should be
accompanied by an affidavit in the prescribed from in support of allegation of
such practice and particulars thereof. (835-D, E)
F
G
H
2. All material facts, thereof, in accordance with the provisions of the
Representation of the People Act, 1951 have to be set out in the election
petition. If the material facts are not stated in petition, it is liable to be
dismissed on that ground as the case would be covered by Section ·83(1)(a) of
the Act read with Rule ll(a) of Order VII of the Code. (835-FJ
3. The expression 'material facts' has neither been defined in the Act
nor i~ the Code. According to the dictionary meaning, 'material' means
'fundamental,' 'vital, 'basic', 'cardinal', 'central', 'crucial', 'decisive', .
'essential', 'pivotal', 'indispensable', 'elementary' or primary. The phrase
.....
HARKIRAT SINGH v. AMARINDER SINGH
819
'material facts', therefore, may be said to be those facts upon which a party A
relies for his claim or defence. In other words, 'material facts, are facts upon
which the plaintifrs 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 p'"imary 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 h
must be stated in the pleadings by the party. (835-G. H; 836-A, BJ
Phillips v. Phillips (1878) 4 QBD 127 and Bruce v. Odhams Press Ltd.,
(1936) 1 KB 697, referred to.
Burrton 's Legal Thesaurus, Third Edn. P. 349, referred to.
c
4. 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 D
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, clearer and more
informative. 'Particulars', thus, ensure conduct of fair trial and would not
take the opposite party by surprise. (836-F, G)
E
5. 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 F
hand, are the details of the case which is in the nature of evidence a party
would be leading at the time of trial. (836-H; 837-A)
Halsbury's Laws of England 4th Edn., Vol. 36, para 38, referred to.
6. In the present case, 'material facts' of corrupt practice said to have G
been adopted by the respondent had been set out in the petition with full
particulars, It has been expressly stated as to how a Ga:zetted Officer of Class
I in the State Government assisted the respondent by doing several acts, as to
complaints made against him by the authorities and taking of disciplinary
action. It has also been stated as to how a Police Officer, who was holding the
post of Superintendent of Police, helped the respondent by organizing a H
820
SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.
A meeting and by distributing posters. It was also alleged that correct and_
proper accounts of election expenses have not been maintained by the
respondent. The High Court was wholly unjustified in entering into the
correctness or otherwise of facts stated and allegations made in the election
petition and in rejecting the petition holding that it did not state material facts
and thus did not disclose a cause of 1>ction. The High Court stepped into
B prohibited area of appreciating the evidence and by entering into merits of
the case which would be permissible only at the stage of trial of the election
petition and not at the stage of consideration whether the election petition
was maintainable. (849-E, F, G, H; 850-A]
C
Ba/wan Singh v. Lakshmi Narain and Ors., (1960] 3 SCR 91, R.M
Seshadri v. G. Vasantha Pai., (1969] 3 SCC 27, S.N. Balakrishna v. George
Fernandez., [1969] 3 SCC 238, Raj Narain v. Indira Nehru Gandhi., (1972] 3
SCC 850, Pratap Singh v. Rajinder Singh., (1975] 1 SCC 535, D. Venkata
Reddy v. R. Sultan., (1976] 2 SCC 455, K.M Mani v. P.J Antony., (1979] 2
SCC 221, Azar Hussain v. Rajiv Gandhi., (1986] Supp. SCC 315, S.A. Sapav.
D singore., [1991] 3 SCC 375, Gajanan Krishnaji Bapat v. Dattaji Raghobaji
Meghe., [1995) 5 SCC 347, L.R. Shivaramagowda v. T.M Chandrashekar.,
(1999) I SCC 666, V.S. Achuthanandan v. P.J. Francis., (1999) 3 SCC 737, V.
Narayanaswamy v. C.P. Thirunavukkaras.u., [2000) 2 SCC 294, Hari Shankar
jain v. Sonia Gandhi., (200118 SCC 233, Santosh Yadan v. Narendra Singh.,
E (2002] 1 SCC 160 and Mahadeorao Sukaji Shivankar v. Ramaratan Bapu.,
[2004] 7 sec 181, relied on.
F
Hardwari Lal v. Kamal Singh., (1972] 1 SCC 214, Dau/at Ram Chauhan
v. Anand Sharma., (1984] 2 SCC 64 and Udhav Singh v. Madhav Rao Scindia.,
(1976] 2 SCR 246, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 845 of2005.
From the Judgment and Order dated 3.11.2004 of the Punjab and Haryana
High Court in E.P. No. 26 of 2002.
G
P.S. Mishra, Randhir Singh Jain, Durgainder Singh, Ms. Savita Singh
and Ravi Kataria with him for the Appellant.
R.S. Cheena, D.P. Singh and Sanjay Jain for the Respondent.
The Judgment of the Court was delivered by
H
-
-
HARKIRAT SINGH v. AMARINDER SINGH [THAKKER, J.]
821
C.K. THAKKER, J. The present appeal is directed against the judgment A
and order dated 3rd November, 2004 passed by the High Court of Punjab &
Haryana in Election Petition No. 26 of2002. By the said Order, the High Court
dismissed the Election Petition filed by the appellant-petitioner upholding
preliminary objection raised by the respondent that the petitioner had failed
to disclose material facts as to corrupt practice constituting the cause of
action in the election petition.
B
To appreciate the controversy raised in the present appeal, few relevant
facts may be stated. On December 26, 2001, election for constitution of Punjab
Legislative Assembly was announced. On January 16, 2002, Hon'ble the
President of India issued a notification calling upon the electors in the State C
of Punjab to elect their representatives for Punjab Vidhan Sabha. Various
stages of election were fixed. As per the notification, January 23, 2002 was
the last date for filing nominations by candidates aspiring to be elected to
Punjab Vidhan Sobha. Scrutiny ofnomination papers was fixed as January 24,
2002 and the last date of withdrawal of nomination was January 28, 2002.
Polling was to take place on February 13, 2002 and February 24, 2002 was the D
date of the counting of votes and of declaration of result.
The respondent herein filed his nomination from 76, Patiala Town
Assembly Constituency as the candidate nominated by Congress (I) Party.
The respondent was declared as elected. He was also elected as the leader E
of the Party and became the Chief Minister of Punjab.
The appellant herein-petitioner before the High Court-was an elector in
the constituency from which the respondent contested the election. The
petitioner filed an Election Petition in the High Court under Section 81 of the
Representation of the People Act, 1951 (hereinafter referred to as 'the Act') F
questioning the election of the respondent to the Punjab Legislative Assembly
from 76, Patiala Town Assembly Constituency on the ground of corrupt
practice as detailed in the Election Petition. A prayer was, therefore, made to
declare the election of the respondent void and for issuing appropriate
consequential directions.
In the Election Petition, it was alleged by the petitioner that the
respondent had committed 'corrupt practice' as enumerated in Section 123 of
G
the Act. The particulars of corrupt practices committed by the respondent
were mentioned by the petitioner in the petition. ln paras 4 and 5 of the
Election Petition, the petitioner stated that one Bharat Inder Singh Chahal was H
822
SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.
A a Government Servant holding Class I gazetted post as Joint Director,
Information & Public Relations Department, Punjab who helped the respondent
immensely during the election campaign of the respondent and-despite his
being holder of a post under the State Government, had actively been
organizing, conducting and participating personally in the press conferences
addressed by the respondent for the furtherance of respondent's election
B prospects. Particulars of corrupt practices committed by the respondent had
also been stated. It was asserted that on January 29, 2002, Mr. Chahal organized
a Press Conference for the respondent at New Moti Bagh Palace, Patiala along
with the respondent for enhancing the election prospects of the latter. An
audio-video cassette containing about 12 minutes clipping was recorded
. C which news appeared in English dailies 'Tribune', 'Indian Express' and 'Times
of India'. According to the petitioner, he was able to procure a copy of the
cassette from one Mr. Jagdeep Singh Chowhan without any manipulation,
dubbing or interpolation.
It was also stated that Mr. G.S. Cheema, Chief Electoral Officer, Punjab
D during media briefing on 4th February, 2002 at the office of the Chief Electoral
Officer in Sector No. I 7, Chandigarh disclosed that Mr. Chahal had actively
participated in the election process. The Election Commission, therefore,
directed Secretary, Punjab Infonnation & Public Relations to take disciplinary
action against Mr. Chahal for violating the code of conduct and for actively
E participating irt Congress' election campaign. Likewise Mrs. Usha R. Sharma,
Additional Chief Electoral Officer, during media briefing on February 6, 2002
stated that the Election Commission of India had pulled up the Punjab
Government and asked the Chief Secretary. of Punjab to look into the matter
as to why action had not been initiated against Mr. Chahal for the alleged
violation of the Election Code and for as~isting the respondent. According
F to the petitioner, this had gone long way to show that Mr. Chahal actively
participated "to the knowledge of the respondent and with the consent of the
respondent" for the furtherance of his election prospects in violation of the
provisions of Section 123 of the Act. The Secretary, Information & Public
Relations, Government of Punjab issued a show cause notice to Mr. Chahal
G over his reported work for the Congress candidate. Mr. Cheema had also
written to Mr. N.K. Arora, Chief Secretary, Punjab seeking action against Mr.
Chahal for alleged partisan role and for his misconduct. Mrs. Usha R. Sharma
further disclosed that a complaint filed by one Mr. J.S. Chowhan had been
forwarded to the Election Commission of India as also to the Secretary,
Information & Public Relations, Punjab recommending that action should be
H taken against Mr. Chahal as complaint had been prima facie established. A
..
HARKIRAT SINGH"· AMARINDER SINGH [THAKKER, J.]
823
Committee was constituted to look into the audio-video cassette and to A
examine the role of Mr. Chahal. According to the petitioner, the Committee of
Infonnation & Public Relations Department submitted a report that Mr. Chahal
was present at the Press Conference of the respondent. The Committee
allowed Mr. Chahal to see the cassette following the principles of natural
justice and asked him to submit his reply by February 8, 2002 explaining his
conduct. The Committee forwarded the report to the Chief Electoral Officer, B
Punjab as also to the Election Commission of India. The above facts were
disclosed by Mr. Cheema, Chief Electoral Officer in a media briefing on
February 7, 2002 at Chief Electoral Officer's office at Chandigarh.
On February 8, 2002, the Secretary, lnfonnation & Public Relations C
Department, Punjab recommended to the Cabinet Minister for Information &
Public Relations Department to issue charge-sheet to Mr. Chahal for a major
penalty on his having worked actively for the election campaign of the Chief
of the Punjab Pradesh Congress Committee-respondent herein.
In para 6 of the petition, the petitioner stated that Mr; Chahal played D
a dcminanl, significant and active role during the election campaign of the
respondent which fact was further corroborated from the fact that Mr. Chahal
was suitably rewarded for herculean efforts put up by him with his appointment
on February 28, 2002 as Advisor to the Chief Minister-respoRdent herein.
It was stated that the respondent took oath as Chief Minister of Punjab E
on February 27, 2002. He accepted the resignation of Mr. Chahal as Joint
Director, Public Relations Department, Punjab on February 28, 2002. On the
same day, the respondent appointed Mr. Chahal as 'Advisor to the Chief
Minister' and an appointment letter was issued. In the 'Indian Express' dated
March l, 2002, it was reported that Mr. Chahal's career in Public Relations p
Department was marked by 'string of controversies' (para 7).
The petitioner, in the election petition, has also said about other corrupt
practices adopted by the respondent. In paras 8 and 9, it was averred that
the respondent had procured assistance of one Gurnam Singh Mehra,
Superintendent of Police, Patiala for furtherance of the prospects of his G
election. The details of the corrupt practice had also been specified in para
9 of the petition. It was said that Mr. Mehra belonged to Kashyap Rajput
community. Mr. Mehra organized a function on January 26, 2002 in favour of
Congress candidate for 76, Patiala Town Assembly Constituency (of the
respondent) which was presided over by Smt. Preneet Kaur, Member of H
824
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.
A Parliament, Patiala and wife of the respondent. The meeting was organized at
Marriage Palace near Railway Phatak No.22, Patiala. For the said meeting, Mr.
Mehra used the office of his newly created Mehra Biradri Social Sangathan
in which posters were distributed with a photograph of Mr. Mehra as
Superintendent of Police in police unifonn describing the respondent as
'Garibon Ka Massiha'. The name of the Sangathan was shown at the bottom.
B Mr. Mehra thus canvassed for the respondent in the said meeting. Those
facts appeared as a news item in the English edition of the 'Tribune' dated
February 5, 2002.
According to the petitioner, the respondent also committed corrupt
C practice by indirectly interfering with the free exercise of electoral rights by
projecting himself as the 'Maharaja of Patiala' in the posters issued by the
respondent and also by his supporters with his consent.
Finally, the petitioner alleged that the respondent had incurred expenses
far more than the prescribed limit of Rs.6 lakhs under Rule 90 of the Conduct
D of Election Rules, 1961 (hereinafter referred to as 'the Rules') and maintainecl
improper and incorrect accounts of the expenditure incum:d and thereby he
violated the provisions of Section 77 of the Act. The respondent had not
shown the expenses of Press Conference held on January 29, 2002 at New
Moti Bagh Palace, Patiala or of the 'heavy tea' served at the said conference
E in his election return (para 11 ).
F
On the basis of above allegations, the petitioner stated that the election
of respondent to 76, Patiala Town Assembly Constituency was liable to be
declared void under Section 100 of the Act. The election petition was verified
and was filed on April I 0, 2002.
A reply in the form of written statement was filed by the respondent
controverting the avennents made and denying the allegations levelled by the
petitioner in the election petition. Preliminary objections were also raised by
the respondent, inter alia, contending that the election petition was liable to
be dismissed as the petitioner had failed to comply with the mandatory
G requirement of filing an affidavitin .Fonn 25 read with Rule 94-A of the Rules
as required by Section 83 of the Act. According to the respondent, the
affidavit was not legal and valid. An affidavit, under the Rules, was required
to be attested either on oath or on solemn affinnation. The affidavit filed by
the petitioner was neither sworn nor it was on solemn affirmation. Both the
H expressions 'sworn' and 'solemn affirmation' were mentioned mechanically.
•
HARKIRAT SINGH v. AMARINDER SINGH [THAKKER, J.]
825
The affidavit thus did not conform to the mandatory requirement of Form 25 A
read with Rule 94-A and the petition was liable to be dismissed on that
ground.
It was also stated that the election petition did not contain "material
facts" much less "material particulars" of alleged corrupt practices mentioned
in the election petition. The so called allegations, stated the respondent, were B
vague, bald, unnecessary, irrelevant, frivolous and did not disclose any cause
of action. The averments were intended to prejudice, embarrass and delay fair
trial of the election petition.
Paras 6 and 7 of the election petition were liable to be struck off being C
unnecessary. The averments in those paras did not pertain to the period from
the date of filing of the nomination papers, had no relevance and did not fall
within the ambit and scope of Section 100 read with Section 123 of the Act.
Contents of para 4 Clid not disclose material facts but the language of Section
123(7)(a) of the Act had been mechanically reproduced by the petitioner.
According to the respondent, para 4 did not contain material facts as to how D
and in what manner the help of Mr. Chahal was sought or obtained for
furtherance of the election result of the respondent, in what form the so called
assistance was rendered and how it affected the electoral rights of the voters
of76, Patiala Town Assembly Constituency. Para 5 similarly did not disclose
material particulars required by law. The reference to organizing, conducting E
and participating personally in press conferences by Mr. Chahal addressed
by the respondent was vague, scandalous and frivolous. The contents failed
to disclose essential ingredients of corrupt practice as contemplated by Section
123(7)(a) of the Act. The so called press conference dated January 29, 2002
was organized and addressed by the respondent as President of the Punjab
Pradesh Congress Committee and it had absolutely no connection with his F
election to 76, Patiala Town Assembly Constituency. The respondent has also
stated that it was not disclosed by the petitioner as to who was the author
of the audio-video cassette, how the copy of the cassette came to the hands
of Jagdeep Singh Chowhan and how the said copy was free from any
manipulation, dubbing and interpolation particularly when the original audiovideo cassette was not on record. Even the transcript in English of the G
cassette had not been produced.
Regarding assistance of Mr. Mehra, Superintendent of Police, Patiaia, it
· was contended by the respondent that in the absence of basic ingredients
of Section 123(7)(d) of the Act that the function held on January 26, 2002 was H
826
SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.
A with the consent of the respondent or his election agent, there was nothing
to show how it could connect the respondent with the said function.
As to the allegation of respondent projecting himself as 'Maharaja of
Patiala', it was stated that no such poster had been placed on record nor the
contents of the poster had been reproduced. Thus, no material facts had come
B on record of undue influence.
Regarding election expenses, the averments were tot~!ly vague,
unnecessary and frivolous. The avennents had been made with a view to
prejudice and embarrass, with the object of delaying fair trial of the election
C petition. The provisions of Section 77 were not attracted.
D
On merits also, it was contended by the respondent that no corrupt
practice had been adopted by him and the allegations levelled against him
were incorrect. It was, therefore, submitted that the election petition was liable
to be dismissed.
A replication to the written statement of the respondent was filed by
the petitioner contending that the preliminary objections raised by the
respondent were incorrect and false. Regarding affidavit and verification, it
was stated that if the Court comes to the conclusion that there were some
defects in the affidavit, permission may be granted to the petitioner to file a
E fresh affidavit. So far as corrupt practices are concerned, according to the
petitioner, material facts and particulars had already been stated in the election
petition. The allegations were clear, precise and disclosed a cause of action.
The avennents made in the election petition have been reiterated in the
replication by giving several instances. It was repeated that corrupt practice
F had been adopted by the respondent. The election petition was thus required
to be allowed by setting aside the election of the res!Jondent.
On the basis of rival contentions of the parties, the High Court framed
nine issues. It was contended on behalf of the respondent that the election
petition was liable to be dismissed as preliminary objections raised by the
G respondent were well founded. The Court, accordingly ordered to treat issue
Nos. 5 to 8 as preliminary issues which were as under:
H
5.
Whether the election petition is liable to be dismissed as the
allegations of corrupt practice are not supported by a valid and
legal affidavit as mentioned in preliminary objection No. I and 2
·•
HARKIRAT SINGH v. AMARINDER SINGH [THAKKER, J.]
827
of the written statement? OPR
A
6.
Whether the election petition lacks material facts and particulars
and discloses no cause of action as mentioned in preliminary
objection No.3 to I 0 of the written statement? OPR
7.
Whether the election petition is liable to be dismissed being B
incomplete as mentioned in para no.11 of the preliminary
objections of the written statement? OPR
8.
Whether the election petition is not verified as required under
Order 6 Rule 15 of C.P.C., if so its effect? OPR
Issues 5 and 8 related to the affidavit and verification of election
petition. After considering the submissions of both the sides and referring to
c
the relevant provisions of law in the light of decisions of this Court, the High
Court held that the election petition was not liable to be dismissed on the
ground of defect, if any, in verification and affidavit. Even if there was some
defect, it was 'curable' and not fatal to the election petition. The Court also D
observed thal along with the replication, the petitioner had placed on record
an affidavit which was in conformity with the provisions of Rule 94-A and
From 25 appended to the Rules. The affidavit was allowed to be placed on
record without any objection by the other side. The issues were thus decided
in favour of the election petitioner.
So far as issues 6 and 7 are concerned, the Court was called upon to
consider whether the election petition lacked 'material facts' and 'particulars'
E
and did not disclose a cause of action and was liable to be dismissed being
incomplete as contended by the respondent. The Court stated that it was well
established that an election petition was supposed to disclose all 'material p
facts' to constitute a complete cause of action. According to the Court, an
election petition should contain concise statement of material facts and it was
necessary 'to disclose fullest possible particulars'. The Court stated that the
counsel cited several judgments showing the distinction between 'material
facts' and 'material particulars'. Referring to a decision of the Supreme Court
in Hardwari Lal v. Kamal Singh, [1972] 1SCC214: [1972] 2 SCR 742, the G
Court said that the material facts are facts which if established would give the
petitioner the relief asked for. If the respondent would not appear, the Court
would give verdict in favour of the petitioner. The said view was reiterated
by the Court in subsequent cases also. Then referring to para 4 of the election
petition, the Court observed that the said para only contained 'reproduction H
828
SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.
A of the wording of Section l23(7)(a) of the Act'. In the opinion of the Court, .
therefore, para 4 of the petition could not be treated as the statement of
material facts regarding corrupt practice.
In respect of material facts and particulars given in para 5(i) regarding
corrupt practice adopted by the respondent, the Court opined that though it
B had been stated that Mr. Chahal, a Gazetted Officer of the State of Punjab had
helped the respondent immensely during his election and had actively been
organizing and conducting personally, press conferences addressed by the
respondent for the furtherance of his election prospects, no date, time and
place of organizing any press conference had been mentioned by the petitioner.
c
D
The Court then observed;
"Whether by the use of words actively organizing, conducting and
participating in press conferences without any further detail will
constitute a material fact, which may lead towards formation of a
complete cause of action or not. This Court feels that the answer is
in the negative". (emphasis supplied)
The Court observed that in sub-para (ii) of para 5, one instance of press
conference which was allegedly held on January 29, 2002 by Mr. Chahal had
been given. It was stated that Mr. Chahal organized the press conference in
E New Moti Bagh Palace i.e. residence of the respondent. Mr. Chahal was
personally present with the respondent and meticulously organized each and
every affair for better result with the object of enhancing the prospect of the
respondent. In sub-para (iii), it was stated that the petitioner was able to
procure a copy of the cassette without any manipulation.
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As to the allegations in sub-paras (i), (ii) and (iii) of para 5, this is what
the Court had to say;
"A reading of sub-paras (i), (ii) & (iii) clearly demonstrate that the
petitioner has failed to disclose as to what was the purpose of press
conference, what was agenda for the same, who were the press
correspondents invited and who invited them and whether any press
note was prepared at the time of press conference or not, what was
addressed to the press correspondents, it has nowhere been stated
that whether any· voter of the constituency, in dispute, was present .
at the time of press conference".
HARKIRAT SINGH v. AMARINDER SINGH [THAKKER, J.]
829
The Court also stated that the petitioner had not stated as to whether A
any proceedings of the press conference were published in the news paper
on the next day, what were the contents of those publications and what was
its eftect on the general electorate in the con tituency. The Court went on
saying that the petitioner had failed to give the name
ingle person who
had read the reporting regarding press conference, which
llegedly B
conducted on January 29, 2002. It was no where stated as to how thew
f
the electorate was affected and how the press conference was an attempt for
the furtherance of electoral prospects of the returned candidate.
It appears that at the time of hearing of arguments, in the presence of
counsel for the parties, video cassette was seen by the Court. The Court C
stated;
"At the time of arguments, in the presence of counsel for the
parties, video cassette was played in Comt. The Press Conference, as
referred to above, was being addressed by the respondent. He along
with Press Correspondents was seen sitting on chairs around a table. D
Bharat lnder Singh Chahal was seen sitting on the back side in second
row. In between, he got up and had a half cifcle of the conference hall
i.e., Library Room of the house of the respondent. At the time of press
conference, as was evident from the video cassette, light snacks were
served to the press correspondents. Shri Chahal was not seen uttering E
a single word either to the respondent or to any of the press
correspondents. At the time of arguments, Shri Saggar read over a
transcript of video cassette, which clearly demonstrated that at the
time of press conference, no appeal was made to the electorate of the
constituency of the respondent. Conference was conducted with
respect to expulsion ofrival candidates from the congress party. It has F
nowhere been pleaded as to what was the object and method of
assistance provided by Bharat lnder Singh Chahal."
Then relying on a decision of the Supreme Court in Dau/at Ram Chauhan
v. Anand Sharma, [ 1984] 2 SCC 64 : AIR ( 1984) SC 62 l, the Court observed
that the allegations made in the election petition could not be said to be in G
the nature of 'material facts' as no details were given. The Court stated that
in the replication, all details were given but they were "material facts" which
the petitioner was required to state in his election petition and not in the
replication which was filed beyond the period of limitation. Since in the
election petition material facts had not been stated, the petition did not H
830
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.
A disclose a cause of action and was, therefore, liable to be dismissed.
Regarding a complaint made by Jagdeep Singh Chowhan to the Chief
Electoral Officer, the Court observed that in the election petition it was stated
that a Committee was constituted in view of allegation that Mr. Chahal had
violated the code of conduct and disciplinary action was required to be taken
B against him. It was recommended to issue notice to Mr. Chahal for major
penalty, but the petition was silent whether such notice was issued or not.
During the arguments, it transpired that no such notice was issued despite
recommendation made by the Chief Electoral Officer. In connection with news
items, the Court noted that those news items no where indicated as to what
C was the quantum of help sought from and rendered by Mr. Chahal to the
respondent.
In paras 6 and 7 of the petition, a reference was made regarding
acceptance of resignation of Mr. Chahal by the respo~dent and his appointment
as Advisor to the Chief Minister. According to the Court, facts mentioned in
D those paras would have been a 'corroborative piece of evidence' if the
petition was capable to be proceeded with but as the petitioner had failed to
state material facts in that regard, he could not get the benefit of the
subsequent development.
On the allegation of assistance of Mr. Mehra, Superintendent of Police,
E according to the Court, no material fact had been disclosed by the petitioner
in the petition. On the meeting held at the Moti Bagh Palace near Railway
Phatak No.22 in which posters were distributed with photograph of Mr.
Mehra in police unifonn, describing the respondent as "Garibon Ka Massiha"
showing the name of Mehra Biradari Social Sangathan, the Court stated;
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"This Court feels that avennents made in this paragraph are very
vague. It has not been stated as to what was the purpose of that
meeting, who were participants, whether any voter from the
constituency in dispute had come there, what was said by f\llr. Mehra
and how he tried to influence the voters."
The Court went on to observe that it had no where been stated as to
what were the contents of that poster, who published it, whether it was
circulated and who read it. The Court, therefore, felt that the petitioner had
failed to disclose material facts as required by law.
HARKIRAT SINGH v. AMARINDER SINGH [THAKKER. J.]
83)
As to allegation of projecting himself as 'Maharaja of Patiala' in a A
poster issued by the respondent, the Court stated that the petitioner had
failed to. disclose material facts as there was nothing to show that the poster
was issued by the respondent or by his supporters with his consent.
Regarding election expenses, the Court observed that mere non
disclosure of expenditure would not be a corrupt practice. It is incurring of .B
expenditure in excess of the prescribed limit which will amount to a corrupt
practice. According to the Court, very vague · averments had been made
simply by stating that the respondent had incurred the expenses more than
the prescribed limit, but no details had been given. According to the Court,
in the election petition, it was stated that the respondent had not shown C
expenses of press conference held on January 29, 2002 in his return of
expenses but nothing had been stated as to what was the total expenditure
and the details had been given only in the replication. Then referring to the
video-cassette, the Court observed that only light snacks, tea and cold drinks
were served to the press corresponqents. The Court stated;
"By taking judicial note of the same, it can be said that even if those
expenses are ordered to be included in the election expenses of the
respondent, the total expenses still shall remain much below the
prescribed limit".
D
In view of the above findings, the Court dismissed the petition by E
passing the following order;
"Despite decision on issues No.5 and 8 in favour of the petitioner,
this petition, in view of findings on issues No.6 and 7, cannot proceed
further as the petitioner has failed to disclose material facts regarding F
corrupt practice, as alleged, to constitute a complete cause of action,
on the basis of which any relief can be granted to him. Accordingly,
this election petition fails and the same is dismissed. No order as to
costs".
On February 28, 2005, after hearing the learned counsel for the appellant, G
the appeal was admitted. In view of the fact that the election petition was
dismissed· at the. threshold on the ground that it did not disclose cause of
action, the matter was placed for final hearing. We have heard Mr. P.S. Mishra,
senior Advocate for the appellant and Mr. R.S. Cheena, Senior Advocate for
the respondent.
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832
SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.
A
Before we deal with the respective contentions of the learned counsel
for the parties, it would be appropriate if we refer to the relevant provisions
of the Act. The Preamble of the Act declares that the Act has been enacted
"to provide for the conduct of elections of the Houses of Parliament and to
the House or Houses of the Legislature of each State, the-qualifications and
disqualifications for membership of those Houses, the corrupt practices and
B other offences at or in connection with such elections and the decision of
doubts and disputes arising out of or in connection, with such elections".
Part I is Preliminary. Part II deals with qualifications and disqualifications
for membership of Parliament and of State Legislatures. While Part III provides
C for issuance of notifications for elections, Part IV relates to administrative
machinery for the conduct of elections. Conduct of elections has been dealt
with in Part V. Part VI relates to 'Disputes regarding elections'. Section· 80
requires any election to be questioned only by way of election petition. Under
Section 80A, it is the High Court which can try election petitions. Section 8 l
provides for presentation of election petition and prescribes the period of
D limitation. Section 82 declares as to who shall be joined as respondents to
such election petition. Section 83 deals with contents of petition and reads
thus83.
Contents of petition. (1) An Election petition
E
(a)
shall contain a concise statement of the material facts on which
F
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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.
;t
HARKIRAT SINGH v.