Election Petition Liable To Be Dismissed On Showing No Cause Of Action; Vague Allegations Not Material Facts : Supreme Court

The Supreme Court recently highlighted that mere bald and vague allegations without any basis would not constitute as “material facts” in an Election Petition. “Material facts” are facts which if established would give the petitioner the relief asked for.

The material facts have to be pleaded by the Election petitioner in support of the case to show his cause of action and omission of a single material fact would lead to an incomplete cause of action, a Bench of Justices Ajay Rastogi and Bela Trivedi explained in the judgement.

“Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of stating material facts in the Election Petition. As well settled not only positive statement of facts, even a positive statement of negative fact is also required to be stated, as it would be a material fact constituting a cause of action. The material facts which are primary and basic facts have to be pleaded by the Election petitioner in support of the case set up by him to show his cause of action and omission of a single material fact would lead to an incomplete cause of action, entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) CPC read with Section 83(1)(a) of the RP Act”

The Bench made these observations while allowing an appeal filed by the DMK leader Kanimozhi Karunanidhi challenging the Madras High Court's refusal to dismiss election petitions disputing her election from Thoothukudi Lok Sabha constituency in the 2019 general elections.

The judgement authored by Justice Trivedi noted that the right to elect, though fundamental to democracy, is neither a fundamental right nor a common law right. It is purely a statutory right. Similarly, right to be elected and the right to dispute an election are also statutory rights.

“Since they are statutory creations, they are subject to statutory limitations. An Election petition is not an action at common law, nor in equity. It is a special jurisdiction to be exercised in accordance with the statute creating it. The concept familiar to common law and equity must remain strangers to election law unless statutorily embodied. Thus, the entire election process commencing from the issuance from the notification calling upon a constituency to elect a member or members right upto the final resolution of the dispute, concerning the election is regulated by the Representation of People Act 1951.”

Relying on the judgement in Union of India v/s Association for Democratic Reforms, among others, the Court observed that Rule-4A and Form-26 required a candidate to disclose the information and particulars in the form of affidavit to be submitted along with the nomination paper.

One of the Respondent’s contention was the non-compliance of the requirement of Section 83(1)(a) of the EP Act which states that an Election petition must contain a concise statement of material facts on which the petitioner relies is.

The Court held that the non-compliance of Section 83(1)(a) read with Order VII, Rule 11, CPC, may entail dismissal of the Election Petition right at the threshold.

“The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election petition on the basis of the facts pleaded in the petition. They must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. Material facts would include positive statement of facts as also positive statement of a negative fact.”

It is the Respondent’s case that the Election Commission of India had called for the information prescribing the Form 26 in regard to status of filing of income tax return of candidates and their family members. The petitioner had provided information that her spouse was working as consultant at foreign country and earning salary against the column No. 8, Serial No.9(b) and 9A(b), respectively under Part A of Form 26. Besides, she had mentioned “No” to the query regarding Income tax dues of her spouse, She had further stated that her spouse had bank accounts in Singapore with deposit of dollars but had failed to disclose the status of filing income tax return of her spouse in the foreign country.

He therefore submitted that these material facts which have already been stated in the Election petition, were sufficient to constitute cause of action for filing Election petition under Section 100(1)(d)(iv) of the RP Act.

The Court didn’t feel the same way. If the averments made in the Election petition are read in juxtaposition to the information furnished by the appellant-returned candidate in Form No. 26, it clearly emerges that against the information sought about the PAN number of the spouse of the appellant, it has been stated that “No PAN No.”, “Spouse K. Aravindhan Foreign Citizenship”. With regard to the information against sought against the column “The financial year for which the last income tax return has been filed”, the information supplied by the appellant about her spouse is “Not applicable”.

“The appellant has filled in all the columns of Form No. 26 by furnishing the 32 information with regard to her Permanent Account Number and status of filing of income tax return etc. and of her husband wherever applicable. If according to the respondent-election petitioner, the appellant-returned candidate had suppressed the Permanent Account Number of her spouse and also about the non-payment of income tax of her spouse in the foreign country, it was obligatory on the part of the Election petitioner to state in the Election petition as to what was the Permanent Account Number of the spouse of the returned candidate in India which was suppressed by her and how the other details furnished about her husband in the said Form No. 26 were incomplete or false”, the Court observed.

The Bench also highlighted that at the time of scrutiny of the nomination paper and the affidavit in the Form 26 furnished by the Appellant-returned candidate, neither was any objection raised, nor had the Returning Officer found any lapse or non-compliance of Section 33 or Rule 4A of the Rules.

“As elaborately discussed earlier, Section 83(1)(a) of RP Act mandates that an Election petition shall contain a concise statement of material facts on which petitioner relies, and which facts constitute a cause of action. Such facts would include positive statement of facts as also positive averment of negative fact. Omission of a singular fact would lead to incomplete cause of action. So far as the present petition is concerned, there is no averment made as to how there was non-compliance with provisions of the Constitution or of RP Act or of the Rules or Order made thereunder and as to how such non-compliance had materially affected the result of the election, so as to attract the ground under Section 100(1)(d)(iv) of the RP Act, for declaring the election to be void. The omission to state such vital and basic facts has rendered the petition liable to be dismissed under 35 Order VII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act, 1951”, the Bench observed.

The Court also summarized the following points:

• Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code.
• The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgement of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad.
• Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.
• In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected.
• The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose.
• An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act.

Case Title: Kanimozhi Karunanidhi v. A. Santhana Kumar And Ors. SLP(C) No. 28241-28242/2019

Citation : 2023 LiveLaw (SC) 398

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