ORDER
1. This order shall dispose of two Civil'Misc. Applications Nos. 20-E and 21-E of 1993, as common question of law and fact is involved in both these applications.
2. Elections to Punjab Assembly were held on 19-2-1992. Petitioner contested the said election as a candidate of Akali Dal (Kabul) and respondent No. 1 Shri Harcha-ran Singh Brar, the returned candidate(hereinafter referred to as respondent No. 1) as Congree (I) party candidate. Respondent No. 1 secured 21600 votes and was declared elected from 105-Muktsar Assembly Constituency by tbe Returning Officer. Petitioner secured 15323 votes. There were other candidates also in the fray.
3. Petitioner filed the present election petition challenging the election of respondent No. 1 inter alia on the ground that nomination papers of respondent No. 1 were filed after 3 p.m. on 1-2-1992 which was the last date of filing of the nomination papers and, therefore, could not be accepted. On a protest raised by the petitioner, he was arrested and ultimately the nomination papers which were not even duly signed by respondent No. 1 were accepted by the Returning Officer at 4.30 p.m. on 1-2-1992. The case of the petitioner is that nomination papers of respondent No. 1 could not be accepted after the expiry of the time period fixed for filing of the nomination papers. The same having been accepted illegally by the Returning Officer, the election of respondent No. 1 was liable to be set aside, apart from this allegation, petitioner also levelled allegations. of commission of corrupt practices under Section 123(7) of the Representation of the People Act, 1951 (hereinafter referred to as the Act), that is, procuring the assistance of police personnel; under Section 123(8) of the Act of booth capturing and bogus polling and undue influence as defined in Section 123(2) of the Act.
4. In the written statement filed on behalf of respondent No. 1, the preliminary objections taken were that the petition has not been duly verified in accordance with the mandate of Section 83 of the Act read with Order 6, Rule 15 of the Code of Civil Procedure further objection was that petitioner had not alleged in the petition that the result of the electjon, in so far as the same concerned to the returned candidate has been materially affected on account of improper acceptance of his nomination papers by the Returning Officer; that it was mandatory for respondent No. 1 to allege that such wrongful acceptance has resulted in materially affecting the resultof the election in so far as it concerned the returned candidate; that the petitioner had failed to disclose full cause of action. The other preliminary objections taken were regarding the striking of certain paragraphs which lacked material facts where allegations of corrupt practice had been made.
5. Replication to the written statement was filed. It was asserted therein that there was no defect in the verification of the petition and the same has been duty verified in accordance with law. Regarding the non pleading of the fact that wrongful acceptance of the nomination papers had resulted in materially affecting the result of the returned candidate, it was stated that the same was not necessary because the allegations made were with regard to the wrongful acceptance of the nomination papers of the returned candidate himself.
6. On the pleading of the parties, the following issues were framed on 19-11-1992 :--
1. Whether the nomination papers of respondent No. 1 were improperly accepted by the returning Officer. If so, its effect OPP
2. Whether the election of respondent No. 1 is liable to be set aside on the ground of his having committed a corrupt practice under Section 123 of the Act? If so, to what extent and its effect OPP
3. Whether the election of respondent No. 1 is liable to be set aside on the ground that he procured the assistance of police personnel to further the prospectus of his election? If so, to what extent and its effect? OPP
4. Whether the election of respondent No. 1 is liable to be set aside on the ground that he, his agents or other persons committed act of booth capturing If so, to what extent and its effect OPP
5. Whether the election of respondent No. 1 is liable to be set aside on the ground that he or his agent or at his instance or at the instance of his agent or any other person got distributed pamphlets as alleged If so, towhat extent and its effect OPP
6. Whether the election of respondent No. 1 is liable to be set aside on the ground that he exceeded the limits prescribed by law pertaining to election expenses If so, to what extent and its effect OPP
7. Whether the petition deserves to be dismissed for the reason that the same is not verified in accordance with law? OPD
8. Whether the petition deserves to be dismissed for the reason that Annexures P1 to P5 have not been verified in accordance with the provisions of Section 83 of 1951 Act and Order 6 Rule 15 of the Code of Civil Procedure? OPD
9. Whether the petition deserves to be dismissed for the reason that the same does not disclose complete cause of action OPD
10. Whether paras 5 and 6 of the petition are laible to be struck off the record for the reasons that they lack averment to the effect that 'on account of improper acceptance of the nomination papers of the answering respondent, the result of election is so far as it concerns the answering respondent has been 'materially affected OPD
11. Whether paras 9, 10, 4, 15 and 17 of the petition deserve to be struck off the record for the reason that they lack material facts OPD
12. Relief.
7. Before the arguments could be heard on the preliminary issues Nos. 7 to 11, petitioner filed two Civil Misc. Applications N'os. 20-E and 21-E of 1993, for permission to place on record the amended election petition in which the defects regarding the wrong verification of the petition stood removed. It was further prayed that he be allowed to amend para 8 of the petition and add the following lines to the said paragraph :--
'as it has materially affected the result of the election of respondent No. 1.'
In C.M.A. No. 21-E of 1993, a prayer was made that the petitioner be returned the original annexures P1 to P/5 to enable him to make corrections in the verifications in theoriginal annexures.
8. To both these applications, reply has been filed. In the reply, it has been stated that the. application seeking amendment of the election petition has been filed at a belated stage without giving any reasons for delay in filing the application; that these objections had been taken in the written statement filed on 11-9-1992 and the application seeking permission to amend the election petition was filed on 23-4-1993 i.e. after seven months of the taking of the objections in the written statement; further plea taken in these replies is that petitioner be not allowed to amend para 8 of the petition by adding a material fact regarding the material effect on result of the election of respondent No. 1 due to wrongful acceptance of nomination papers as that would amount to adding a material fact which the petitioner could not be permitted to do after the expiry of the period of limitation.
9. Taking the point of verification first, it may be stated at the outset that the petition has not been duly , verified as per legal requirements. The question arises as to what is the effect of defect in verification on the maintainability of the petition. Cousel for the petitioner argued that mere defect in the verification of petitioner is not fatal to the maintainability of the petition and for this purpose he relied upon a judgment of the Supreme Court in F. A. Sapa v. Singora, AIR 1991 SC 1557, where their Lordships of the Supreme Court held as under (at pp. 1570-71 ofAIR):
'It must at the outset be realised that Section 86(1) which lays down that the High Court 'shall' dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 does not in terms refer to Section 83. It would, therefore, seem that the legislature did not view the non-compliance of the requirement of Section 83 with the same gravity as in the case of Section 81, 82 or 117. But it was said that a petition which does not strictly comply with the reqirements of Section 83 cannot be said to be an election petition within the contemplation of Section 81 and hence Section 86(1) was clearly attracted. InMurarka Radhey Shyam v. Roop Singh Rathore, (1964) 3 SCR 573 : AIR 1964 SC 1545 one of the defects pointed out was that through the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources, the petition did not in so many words state that the advice and information received was believed by him to be true. The Election Tribunal held that this defect was a matter which came within Section 83(1)(c) and the defect could be cured in accordance with the principles of the Code. This Court upheld this view in the following words (at p. 1549 of AIR):--
'It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by Cl. (c) of sub-section (1) of S. 83 is fatal to the maintainability of the petition.' It is thus clear from this decision which is binding on us that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown put solely on that ground. As observed earlier since Section 83 is not one of three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81.'
10. Counsel for respondent No. 1 did not seriously contest the proposition that the defect in the verification of the petitioner is not fatal to the maintainability of the petition. The only submission on this point which was made by counsel for respondent No. 1 is that the application for permission to rectify the verification was made after the expiry of seven months of the filing of the written statement where this objection was taken for the first time. No doubt, the petitioner has filed the application at a belated stage withoutexplaining the delay in filing the application for rectification of the verification but in view of the public law rights involved in the election petitions and in the interest of justice, I permit the amendment of the verification. That being the position, though it is held that verification is not on proper form but the petitioner is granted a week's time from the date of this order to amend the verification in accordance with law failing which, the petition would be deemed to be dismissed. Annexures P1 to P5 be returned to the petitioner in original to enable him to correct the verification and refile the same along with the amended election petition which has already been filed in the Court.
11. Next I take up the question in so far as it relates to amendment of para 8 of the petition. Petitioner in his election petition had stated all the facts, relating to improper acceptance of the nomination papers of respondent No. 1, the same having been filed after the time period allowed for filing the nomination papers was over but did not further state the words as contained in Section 100(1)(d) of the Act to the effect 'that the result of the election, in so far as it concerns a returned candidate has been materially affected by the improper acceptance of the nomination papers'. In CM.A. No.20-E of 1993, petitioner has sought the amendment of para 8 of the petition. It has been stated that such an amendment is not necessary in the facts of the present case as the challenge is to the wrongful acceptance of the nomination papers of the returned candidate himself which in the given circumstances would be the obvious conclusion but by way of abundant caution the petitioner prayed that he be permitted to add the words; 'as it has materially affected the result of election of respondent No. 1.'.
12. Case of respondent No. 1 is that the introduction of these words amounts to pleading a new material fact which the petitioner cannot be allowed to do beyond the period of limitation; that the petitioner failed to disclose complete cause of action while filing the petition and he cannot be permitted to do so at this stage.
13. To appreciate the controversy, provisions of Sections 81, 82, 83(1) (a) and (b), 86(5), 100(1) (c) and (d) need examination and are reproduced below:--
'81. Presentation of petition:-- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Secton 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation:-- xxx xx
(2) omitted by Act 47 of 1966.
(3) Every election petition shall be accompanied by as many copies thereof as there are resp6ndents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition.'
'82. Parties of the petition : A petitioner shall join as respondents to his petition -
(a) where the petitioner, in additional to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates, and
(b) any other candidate against whom allegations of any corrupt practice are madein the petition.'
'83. Contents of petition :-- (1) An election petition.
(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 that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such practice and the date and place ofcommission of each such practice; and
(c) xxx xx
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.
(2) xxx xxx xxx xxx
86. Trial of election petitions:-- (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
Explanation:- An order of the High Court dismissing an election petition under this subsection; shall be deemed to be an order made under clause (a) of Section 98.
(3) xxx xx
(4) xxx xx
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition,
(6) xxx xx
(7) xxx xx
'100. Grounds for declaring election to be void -- (1) Subject to the provisions of subsection (2) if the High Court is of opinion -
(a) xxx xx
(b) xxx xx
(c) that any nomination been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate has been materially affected -
(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 agent, or
(iii) by the improper reception, refusal pr rejection of any vote or the reception of any vote which is void, or
(iv) by any non-complaiance with the provisions of the Constitution or of this Act or any of the rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) xxxxx
14. Under Section 81 of the Act, an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101. Under Section 83(1)(a) of the Act an election petition shall contain a concise statement of the material facts on which the petitioner relies. Under Section 83(1)(b) if it relates to corrup practice then the petitioner is required to give full particulars of such corrupt practice. Section 86(5) of the Act provides that the High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. In Section 86 reference is made to the 'particulars' and not to the 'material facts'. Therefore, it is relatable to clause (b) of Section 83(1) and not to clause (a) of Section 83(1). A perusal of Section 83(1)(a) and 83(1)(b) would reveal that the legislature has worded the clauses in a different and distinct phraseology. The law requires emphatically that particulars of corrupt practice should be disclosed in the petition. It does not require similar particulars to be given in respect of other matters. All what is required to be stated under Section 83(1)(a) is the concise statement of material facts on which the petitioner relies. Requirement of clause (a) cannot be equated with those of clause (b) ofSection 83 of the Act.
15. The distinction between 'material facts' and 'material particulars' is important because different consequences flow the deficiency of such facts and particulars in pleadings. Deficiency in pleading a 'material fact' leads to an incomplete cause of action importing dismissal of the election petition whereas the deficiency in or incomplete particulars in an election petition may not lead to the same result. The Court may permit the details of such particulars to be supplied at a later stage for the purposes of amplifying the 'material facts' already pleaded in the petition. Sections 86(5) and 83(1) (a) & (b) of the Act have been interpreted by the Supreme Court in a number of cases. The latest judgment cited at the bar on the point is F.A. Sapa v. Singora, AIR 1991 SC 1557 in which other judgments which were cited at the Bar have already been discussed. In F.A. Sapa's case (supra) it was held that (at pp. 1569-70 of AIR) :--
'It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the 'material facts'. It is, therefore; clear from the trinity of clauses (a) and (b) of Section 83 and sub-section (5) of Section 86 that there is a distinction between 'material facts' referred to in clause (a) and 'particulars' referred to in clause (b) and what Section 86(5) permits is the amendment/ amplification of the latter and not the former, Thus the power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This become crystal clear on the plain words of the closely connected trinity of Sections 83(1)(a), 83(1)(b) and 86(5) and is also supported byauthority. See Samant N. Balkrishna v. George Fernandez, (1969) 3 SCR 603: AIR 1969 SC 1201 and D. P. Mishra v. Kamal Narayan Sharma, (1971) 1 SCR 8 : AIR 1970 SC 1477. In Balwan Singh v. Lakshmi Narain, (1961) 22 ELR 273 : AIR 1960 SC 770 this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down. We may, however, hasten to add that once the amendment sought falls within the purview of Section 86(5), the High Court should be liberal in allowing the same unless, in facts and and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCR 841 : AIR 1972 SC 1302. This much for the provisions of Section 83(1) (a) and (b) and Section 86(5) of the R.P. Act.
16. The judgments cited before me were all relatable to Section 83(1)(b) and Section 86(5) which relate to corrupt practice. No judgment was cited which was relatable to Section 83(1)(a) of the Act which enjoins upon the petitioner to state the material facts in a Concise form. Petitioner has given all the material facts as to how the nomination papers of respondent No: 1 were wrongly accepted. The only thing which he did not state was that 'it resulted in materially affecting the result of the election in so far as if relates to the returned condidate' as provided under Section 100(1)(d) of the Act. Question arises --did the petitioner disclose his full cause of action while presenting the petition in his pleadings? Under Section 83(1)(a) of the Act, petitioner has to state all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends upon the nature of the charge levelled, the ground relied uponand the special circumstances of the case. Inshort, all those facts which are essential toclothe the petitioner with a complete cause ofaction are 'material facts' which must bepleaded, and failure to plead even a singlematerial fact amounts to disobedience of themandate of Section 83(1)(a) of the Act. Onceall the material facts have been stated, as hasbeen done in the present case, leading to theimproper acceptance of the nominationpapers of respondent No. I, then it wouldamount to a valid presentation of the petitioncontaining concise statement of material factson which the petitioner has relied upon interms of Section 81(1) of the Act calling inquestion the election on any or more of thegrounds specified in sub-section (1) of Section100 and Section 101 of the Act. Materialeffect on the result of the returned candidateon improper acceptance of the nominationpapers is a matter of proof on which theparties shall lead their evidence and the HighCourt if satisfied on the evidence led before it,comes to the conclusion that improper acceptance of the nomination paper has resultedin material effect on the result of the returnedcandidate then it shall declare the election tobe void. The ingredients of Section 100(1)(d)of the Act is the conclusion to be reached bythe High Court-need not be stated in thepetition specially where the allegations regarding improper acceptance of the nomination papers relate to the returned candidatehimself.
17. The distinction between Sections 100(1)(c) and 100(1)(d) is very bold and clear Section 100(1)(c) of the Act deals with improper rejection of nomination papers which vitiates the election itself without referring to the material effect on the result of the election because the question of proof of material effect would not arise as the candidate had been debarred at the threshold from contesting the election. What would have been its effect on the result of the election, therefore, could not be ascertained but in the case of Section 100(1)(d) regarding improper acceptance of nomination papers, it can be ascertained on the basis of evidence led as to what is its effect on the result of the election, in so far as it concerns the returnedcandidate. There may be situations when the result of the election is not materially affected although a person was allowed to contest the election on the invalid acceptance of the nomination papers. For the first time, the Supreme Court in Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513 cosnidered this matter and held as under (at p 515 of AIR) :--
'Before an election can be declared to be wholly void under Section 100(1)(c), the Tribunal must find that 'the result of the election has been materially affected.' These words have been the subject of such controversy before the Election Tribunals and it is agreed that the opinions expresed have not always been uniform or consistent.'
These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.
The next question that arises is whether the burden of proving this lies upon the petitioner who objects to the validity of the election. It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector...'
In the later discussion, it was held as under (at p. 515 of AIR):--
' 'The learned counsel for the respondents concedes that the burden of proving that the improper accceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of the three ways:
(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes.
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the (next ?) highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion.'
Again this matter was considered in Chhedi Ram v. Jhilmit Ram, AIR 1984 SC 146, in which it was held as under (at p. 148 of AIR):--
'Under Section 100(1)(d) the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination. True, the burden of establishing that the result of the election has been materially affected as a result of improper acceptance of a nomination is on the person impeachig the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself.....'
18. A perusal of both these judgments would show that their Lordships held that it would be a matter of proof as to whether the result of the election has been materially affected in each case in a given situation. But in case the challenge is to the improper acceptance of the nomination papers of returned candidate then such would be the conclusion. So the point in issue in the present case also stands squarely concluded by the Supreme Court in Durai Muthuswami v. N. Nachi-appal, AIR 1973 SC 1419. Their Lordships in this case were considering the same point such as in this case where the petitioner had not pleaded the fact 'that the result of the election, in so far as it concerns the returned candidate has been materially affected.' It was held that such a fact need not be pleaded in the case where the petitioner had called inquestion the election of the returned candidate himself. It was observed as under (at p. 1421 of AIR):
'The High Court shall declare the election of the returned candidate to be void. Therefore, what Section 100 requires is that the High Court before it declares the election of a returned candidate as void should be of opinion that the result of the election in so far as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination. Under Section 83 all that was necessary was a concise statement of material facts on which the petitioner relies. That the appellant in this case has done. He has also stated that the election is void because of the improper acceptance of the first respondent's nomination and the facts given snowed that the 1st respondent was suffering from a disqualification which will fall under Section 9A. That was it was called improper acceptance. We do not consider that in the circumstances of this case it was necessary for the petitioner to have also further alleged that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of the 1st respondent's nomination. That is the obvious conclusion to be drawn from the circumstances of the case.'
It was further held as under (at p. 1422 of AIR):--
'..... It is not intended to provide aconvenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination. 'Materially affected' is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the first respondent's election should be declared to be void. He had also given the material facts as required underSection 83(1)(a). We are, therefore, of the opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the 1st respondent's nomination had been improperly accepted.'
19. Although I have held that in this particular case, it was not necessasry for the petitioner to plead that wrongful acceptance of the nomination papers of respondent No. 1 has materially affected the result of the election as respondent No. 1 was the returned candidate but since the petitioner has applied for amendment by way of abundant caution, I permit him to amend the petition. Written statement to the amended petition be filed within three weeks. No costs.
20. To come up on 7-10-1993 for further proceedings.
21. Order accordingly.