Kanimozhi Karunanidhi vs A. Santhana Kumar & Ors.

Representation of the People’s Act, 1951 – Right to elect, right to be elected and the right to dispute an election – Nature of – Held: A right to elect 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 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 Election petition is a serious matter, 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 – Constitution of India – Part-XV.

Words & Phrases – “material facts” – What constitutes – Discussed – Representation of the People’s Act, 1951 – s.83(1)(a).

Allowing the appeals, the Court

HELD: 1.1 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. [Para 28][825B-H; 826-A]

1.2 The election petitioner i.e., the respondent has made very bald and vague allegations without stating the material facts as to how there was non-compliance of any of the provisions of the Constitution of India or of the RP Act or of the rules made thereunder. If the averments made in the Election petition are read in juxtaposition to the information furnished by the appellantreturned 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”. Against the information sought with regard to “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 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 appellantreturned 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. Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of stating material facts in the Election Petition. [Paras 30, 31][826-G-H; 827-A-D]

1.3 It is also significant to note that an affidavit in Form 26 along with the nomination paper, is required to be furnished by the candidate as per Rule 4A of the said Rules read with Section

33 of the said Act. The Returning Officer is empowered either on the objections made to any nomination or on his own motion, to reject any nomination on the grounds mentioned in Section 36(2), including on the ground that there has been a failure to comply with any of the provisions of Section 33 of the Act. However, at the time of scrutiny of the nomination paper and the affidavit in the Form 26 furnished by the Appellant-returned candidate, neither any objection was raised, nor the Returning Officer had found any lapse or non-compliance of Section 33 or Rule 4A of the Rules. Assuming that the election petitioner did not have the opportunity to see the Form No. 26 filled in by the Appellant-returned candidate, when she submitted the same to the Returning Officer, and assuming that the Returning Officer had not properly scrutinized the nomination paper of the appellant, and assuming that the election petitioner had a right to question the same by filing the Election petition under Section 100(1)(d)(iv) of the said 34 Act, then also there are no material facts stated in the petition constituting cause of action under Section 100(1)(d)(iv) of the RP Act. In absence of material facts constituting cause of action for filing Election petition under Section 100(1)(d)(iv) of the said Act, the Election petition is required to be dismissed under Order VII Rule 11(a) CPC read with Section 13(1)(a) of the RP Act. 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 Order VII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act, 1951. Election petition filed by the respondent-election petitioner is dismissed. [Paras 33, 34][827-F-H; 828-A-F] N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency & Ors. 1952 (1) SCC 94; Jagan Nath vs. Jaswant Singh & Ors. AIR 1954 SC 210 : [1954] SCR 892; Bhikji Keshao Joshi & Anr. vs. Brijlal Nandlal Biyani & Ors. AIR 1955 SC 610 : [1955] SCR 428; Murarka Radhey Shyam Ram Kumar vs. Roop Singh

Rathore & Ors. AIR 1964 SC 1545 : [1964] SCR 573 – followed.

Ram Sukh vs. Dinesh Aggarwal 2009 (10) SCC 541 : [2009] 14 SCR 836; Hari Shanker Jain vs. Sonia Gandhi 2001 (8) SCC 233 : [2001] 3 Suppl. SCR 38; Samant N. Balkrishna & Anr. vs. George Fernandez & Ors. 1969 (3) SCC 238 : [1969] 3 SCR 603; Union of India vs. Association for Democratic Reforms & Anr. 2002 (5) SCC 294 : [2002] 3 SCR 696; Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu & Ors. 2004 (7) SCC 181 : [2004] 3 Suppl. SCR 553; Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar 2009 (9) SCC 310 : [2009] 14 SCR 10 – relied on.