ORDER
Dr. M.K. Sharma, J.
1. This petition has been preferred by the petitioner under Article 227 of the Constitution of India challenging the legality of the order dated 31 July, 1998 passed by the Additional District Judge, Delhi rejecting the preliminary objection raised by the petitioner seeking dismissal of the election petition on the ground that the same lacks material facts.
2. Delhi, as defined under the DMC Act, is divided into 124 wards. Each of the aforesaid wards is to return one Councillor to the Municipal Corporation of Delhi, Ward No. 122 is a reserved ward from where only a candidate belonging to the Scheduled Caste was competent to seek election as a Councillor to the Municipal Corporation of Delhi. The election of the Councilor to the Municipal Corporation of Delhi was last held on 23.2.1997 by the Election Commissioner appointed under the provisions of the DMC Act. The results of the aforesaid election of the councillors were published on 3.3.1997 in the Official Gazette issued by the State Election Commissioner under Section 14 of the Delhi Municipal Corporation Act, 1957.
3. The petitioner herein was on of the candidates in the said election for electing a Councillor from Ward No. 122. He was set up as an official candidate by the Bhartiya Janta Party. There were altogether 5 contesting candidates from the aforesaid constituency out of which Sh. Thakur Dass, respondent No. 1 was the candidate set up by the Indian National Congress. According to the results of the election declared by the Returning Officer, the petitioner polled 7117 valid votes while Sh. Thakur Dass polled 6987 valid votes and accordingly the petitioner was declared elected by the Returning Officer by a margin of 130 votes. The respondent No. 1 being aggrieved by the aforesaid result of the election of the ward No.122 filed an election petition challenging the election of the petitioner from the aforesaid ward as envisaged under Section 15 of the DMC Act, 1957. The petitioner herein filed the written statement controverting the allegations made in the petition and raised certain grounds and pleas contending, inter alia, that the petition did not disclose any cause of action and that the same was liable to be dismissed. It was further contended that the election petition suffered from lack of concise statement of material facts. It was also stated that the allegations made by the respondent are vague and are in the nature of roving and fishing enquiry. On the basis of the pleadings of the parties. 13 issues were framed by the Additional District Judge, Delhi, who was entrusted to decide the fate of the aforesaid petition. Amongst the aforesaid issues, two issues which are relevant for the purpose of deciding the present petition were framed in the following manner:-
1. Whether the petitioner has complied with the provisions of Section 15(4)(a), (b) & (c) of the DMC Act? If not , its effect? OPP
2. Whether the petition does not disclose any cause of action? OPP
4. The Additional District Judge, Delhi took up for consideration the aforesaid objections which were of preliminary nature seeking for rejection of the petition for want of concise statement of material facts and for non-disclosure of any cause of action. After hearing the counsel appearing for the parties, it was held by the Additional District Judge that the aforesaid issues, namely, issue Nos. 1 & 2 would need further consideration and that the rights of the parities could not be decided finally at the aforesaid stage. Being aggrieved by the aforesaid order, the present petition has been preferred, on which I have heard the learned counsel appearing for the parties and have also perused the records placed before me.
5. In order to appreciate the contention of the parties, it would be necessary to notice relevant provisions of the DMC Act and the rules framed thereunder, which are hereinafter called in short the Act and the Rules.
6. By the provisions of the Act the Municipal Corporation of Delhi is constituted as a statutory body . It is constituted and composed of Councillors and Aldermen. The Councillors are to be chosen by direct election on the basis of adult suffrage from various wards into which Delhi shall be divided in accordance with the provisions of the Act while the Aldermen are chosen by the Councillors from among persons who are qualified to be Councillors but are not the Councillors themselves. The process of election of the Councillors is provided under Section 11 of the Act.
7. Under Section 15 of the Act, it is provided that the election of a Councillor can be challenged by an election petition. Section 15 of the Act provides as follows:-
(1) No election of a councillor shall be called in question except by an election petition presented to the court of the district judge of Delhi within fifteen days from the date of the publication of the result of the election under Section 14.
(2) An election petition calling in question any election may be presented under any of the grounds specified in section 17 by any candidate at such election, by any elector of the ward concerned or by an councillor.
(3) A petitioner shall join as respondents to his petition all the candidates at the election.
(4) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall, with sufficient particulars, set for the ground or grounds on which the election is called in question; 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.
8. Section 16 of the Act provides for the relief that could be claimed by an election petitioner in such an election petition which reads as under:-
1. A petitioner may claim -
(a) a declaration that the election of all or any of the returned candidates is void, and
(b) in addition there to, a further declaration that he himself or any other candidate has been duly elected.
2. The expression ' returned candidate' means a candidate whose name has been published in the official Gazette under Section 14.
9. Section 31 of the Act enables the Central Government to frame rules by exercising which powers the Central Government can make rules to provide for or regulate all or any of the matters mentioned in clauses (a) to (k) of sub-Section (1) of Section 31. Exercising the aforesaid powers the Central Government made and promulgated the DMC (Election of Councillors) Rules, 1962, Rules 80 & 81 of the said Rules read as under:-
'80. (1)Where the petitioner alleges any corrupt practice,an election petition shall, in addition to complying with the provision of Section 15 also set forth full particulars of that corrupt practice 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 corrupt practice and shall also be accompanied by an affidavit in the prescribed form in support of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
(3) .... .... .... ...
.... .... .... ....
81. If the provisions of Section 15 or rule 89 are not complied with, the court shall dismiss the petition.'
10. Since, the counsel appearing for the parties drew my attention to similar provisions existing in the Representation of People Act, 1951 and relied upon some of the decisions given by the Supreme Court and this Court in the context of the said Act, I deem it necessary to extract the relevant provisions thereof. Sections 83 and 86 of the Representation of People Act, 1951 provide as under:-
'83.(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 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 for the verification of the 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.
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.
(4) Any candidate not already a respondent shall upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
(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) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavor shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
11. A comparative reading of the aforesaid provisions of the Delhi Municipal Corporation Act and the (Election of Councillors) Rules (1962) and the provisions of Sections 83 and 86 of the Representation of People Act, 1951, it is crystal clear that in a case where the provisions of Section 15 of the Act are not complied with the Court has been empowered to dismiss the election petition itself. No such power, however, is given under the provisions of the Representation of the Peoples Act, in as much as, the Representation of the Peoples Act empowers the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act. The provisions of Section 83 of the said Act are not included within the aforesaid provisions of Section 86 of said Act. It is true that such a petition could be dismissed by the High Court when any of the conditions within the provisions of Order 7 Rule 11, CPC is fulfillled. Similarly, by exercising powers under Order 6, Rule 16 CPC, the court can strike out such pleadings which are found to be vexatious, unnecessary and scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise an abuse of the process of the court.
12. Under the Representation of People Act, the mode for calling in question the election of a returned candidate is by presenting an election petition in accordance with the procedure as laid down in the part which contains Section 80 of the Representation of the People Act. It also provides the procedure for filing such a petition whereas what could be the contents of an election petition, is enumerated in Section 83 of the Said Act. The said provisions state that it must contain a concise statement of material facts on which the petitioner relies but where the petition is founded on the allegation of corrupt practice, it shall set forth full particulars of any corrupt practice alleged by the petitioner including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice together with the date and place of the commission thereof. Section 86(1) of the Act provides 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 of the Representation of People Act. The language of the sub-Section empowers the High Court to dismiss the election petition only when it does not comply with the requirement of Section 81 or Section 82 or Section 117 of Representation of People Act. Section 83, however, does not find place in the aforesaid provisions and, thereforee, for non-compliance of the provisions of Section 83, the High Court has not been empowered to dismiss the petition. Under Order 6 Rule 16 CPC, the court is enable to strike out the pleadings which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise and abuse of the process of the Court. Exercising the aforesaid powers in some of the decisions relied upon by the counsel appearing for the parties, the court has ordered for striking out parts of the pleadings in an election petition. Order 7 Rule 11 CPC enjoins the court to reject the plaint where it does not disclose a cause of action. If on reading of the election petition it is found that the petition does not disclose any cause of action, the provisions of Order 7 Rule 11(A) of the CPC can be invoked. It was however, held in the case of SH. D. Ramchandran Vs . R.V. Janakiraman & Ors. : [1999]1SCR983 that it is elementary that under Order 7 Rule 11 (A) CPC the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. It was further held that under the rule there cannot be a partial rejection of the plaint or petition. While coming to the aforesaid conclusion the Supreme Court relied upon an earlier decision rendered by it in Roop Lal Sathi v. Nachhattar Singh Gill .
13. The provisions of the DMC Act relating to the procedure of lifting an election petition and the procedure laid down to deal with the same, although similar in some respect but there appears to be dissimilarity as well. The election of a Councillor can be challenged by an election petition which is to be presented in accordance with the provisions of Section 15 of the Act. In terms of the provisions of sub-section(4) of Section 15 of the Act, such an election petition has to contain a concise statement of the material facts on which the petitioner relies upon and also shall with sufficient particulars, set forth the ground or grounds on which the election is called in question and is to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings. If any of the aforesaid provisions is not complied with by the election petitioner, such a petition could be dismissed for such non-compliance under the provisions of Rule 81 of the Rules.
14. A reading of the provisions of Rule 81 would make it crystal clear that the said provision empowers the court in no definite terms to dismiss an election petition which does not comply with the provisions of Section 15 of the Act. In the light of the aforesaid provisions, it would be necessary to scrutinise the statements made in the election petition and decide as to whether the present election petition satisfies the requirements under Section 15 of the Act or not. On a scrutiny of the statement and averments made in the petition, if it is found that the said election petition does not contain a concise statement of the material facts, the same has to be dismissed as provided for under the provisions of Section 15 of the Act read with Rule 81 of the Rules. If, on the other hand, it is found that the election petition contains a concise statement of material facts but is devoid of sufficient particulars setting forth the ground or grounds on which the election is called in question or the petition is not verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings, then also such an election petition is to be dismissed in terms of Rule 81 of the Rules.
15. Rule 80 of the Rules contemplates that if a municipal election is challenged on the ground of corrupt practice, in addition to complying with the provisions of clauses (a) & (b) of Section 15(4) of the Act, then the petition shall also set forth full particulars of that corrupt practice 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 corrupt practice etc. This provision is similar to the provisions of Section 83(i)(b) of the Representation of the People Act. It is, however, interesting to note that for non-compliance of the provisions of Rule 80, the election petition cannot be dismissed, for Rule 81 of the Rules contemplates dismissal of the petition only if the provisions of Section 15 of the Act are not complied with and it does not empower a court to dismiss an election petition for non-compliance of Rule 80. The statutory requirement is, thereforee, only of concise statement of material facts along with sufficient particulars set out for the ground or the grounds on which the election is called in question. It is also clear on a reading of the aforesaid provisions that 'sufficient particulars' cannot be equated to 'full particulars' as postulated by Rule 80, for 'full particulars' are to be enumerated only when there is an allegation of corrupt practice in the petition. Regarding other grounds on which the election can be called in question, it would be sufficient, if sufficient particulars are provided in order to comply with the conditions set out by the provisions of the Act and the Rules framed thereunder.
16. The specific case of the petitioner as contended before me is that the petition does not contain a concise statement of material facts. Distinctions between the material facts and particulars have beensuccinctly brought out by the Supreme Court in various decisions and is by now a settled law. One of the earliest decisions on this point is the decision in Samant N. Balakrishna Vs . Georg e Fernandes : [1969]3SCR603 . Drawing the distinction between the material facts and particulars referred to in Section 83 of the Representation of People Act it was observed by the Supreme Court that Section 83 is mandatory and requires the election petition to contain a concise statement of material facts and required the fullest possible particulars. It was held in the said decision that the word 'material' shows that the facts necessary to formulate a complete cause of action must be stated and that omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. On the other hand, it was held that the function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. It was observed in the said decision that there may be some overlapping between the material facts and particulars but the two are quite distinct.
In Jitender Bahadur Singh Vs . Krishana Bihari & Ors. , : [1970]1SCR852 it was observed that the material facts are those which constitute the cause of action or in other words they are the facts on which one or the other ground set out in Section 10 of the Representation of People Act for declaring an election to be void is made out while particulars are with regard to material facts are alleged.
In L.R. Shivaramagowda etc. Vs . T.M. Chandra Shekhar etc. reported in : AIR1999SC252 , earlier decisions of the Supreme Court on the issue have been referred and the proposition of law has been reiterated. In paragraph No. 11 of the said decision it was observed by the Supreme Court that it has repeatedly stressed the importance of pleadings in an election petition. It was also held that while failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. The Supreme Court in the said decision referred to the decisions of SH. Balwan Singh Vs . Shri Lakshmi Narain & Ors. : [1960]3SCR91 , Virendra Kumar Saklecha Vs . Jagjiwan & Ors. : [1972]3SCR955 , Samant N. Balakrishna & Anr. Vs . George Fernandez & Ors. : [1969]3SCR603 , Sh. Udhav Singh Vs . Madhav Rao Sindhia : [1976]2SCR246 and Ganjan Krishanji Bapat & Anr. Vs . Dattaji Raghobaji Meghe & Ors. : AIR1995SC2284 . In the case of Sh. Udhav Singh (supra) it was held by the Supreme Court that all those facts which are essential to clothe the petition with a complete cause of action are 'material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a); Whereas 'particular' are the details of the case set up by the party' and thus, 'material particulars' within the contemplation of clause (b) of Section 83(1) would, thereforee mean all the details which are necessary to amplify, refine and embellish.
17. Reliance was also placed by the counsel appearing for the petitioner in the decision of this court in Sudershan Bhalla v. Sh. R.N. Aggarwal District Judge reported in 1975 (2) Del 359 and in Suraj Bhan v. Hukum Singh Election Petition No. 1/1972 disposed of on 29.9.1972 and also to the decision in Pritpal Singh v. Ranjit Rai Sharma reported in AIR 1984 Del 198. In the Pritpal Singh's case (supra) it was held by this court that a concise statement of material facts in sine qua non of an election petition as of any other statement of claim and thus, where the election petitioner alleging improper rejection of certain number of valid votes cast in his favor gave only the break up of the improperly rejected votes at each counting table but neither gave the Seriall number of the ballot papers which, according to him, were wrongly rejected by the Returning Officer nor gave, nor was given the reasons for their rejection, or the number of the polling station where it was cast, the pleading lacked in material particulars and the petition did not disclose any cause of action.
In Suraj Bhan's case (supra) this court observed that on a reading of Sections 81, 85 and 86 of the Representation of the People Act, it was clear that if material facts are missing in a petition, it would not be a petition in accordance with the provisions of the Act and that it may not be possible to supply the material facts subsequently if they are missing to begin with.
18. In the back drop of the aforesaid settled position of law, let me consider the pleas set up by the counsel appearing for the petitioner before me seeking for dismissal of the election petition for non-compliance of the provisions of Section 15 of the Act. It was submitted by the counsel appearing for the petitioner that the election petition did not contain a concise statement of material facts as is required to be set out in the election petition. He also submitted that the Verification appended to the election petition is also not in terms of the requirements of Section 15 of the Act. He also submitted that the petition deserves dismissal at the very threshold for non-disclosure of cause of action. In support of his contention the learned counsel drew my attention specifically to the contents of paragraph No. 3 and 4 of the election petition, which according to him were baseless, vague and do not contain a concise statement of material facts. He also referred to the contents of paragraphs of 5 to 7 of the petition and submitted that the averments made therein are absolutely vague and do not constitute any cause of action.
19. In the said paragraphs it is alleged by the respondent as the election petitioner, that hundreds of votes were improperly rejected which were otherwise been caste in his favor and that hundreds of votes which were accepted in favor of the respondent/petitioner herein were liable to be rejected. When it is alleged that 'hundreds of votes' were rejected or accepted, the same is a vague statement and cannot be said to constitute 'concise statement of material facts'. The allegations made therein are vague and not supported by statement of material facts. It is also alleged therein that there are large discrepancies in the counting of votes including the discrepancies in the official records maintained by respondents 1 & 2. Nature of discrepancy alleged to have been committed has not been mentioned nor the counting table member has been identified and thereforee, such statements have to be held to be vague statements and do not constitute concise statements of material facts.
20. Paragraphs 3 and 4, in my considered opinion, are statements which are vague and uncertain in nature and they do not contain any material facts. It was, however, argued by Sh. Bagai that the allegations made in the aforesaid paragraphs have been substantiated by giving material facts in paragraphs 5 to 7 of the petition.
21. Mr. Bagai also relied upon the decision of the Supreme Court in Manphul Singh Vs . Surinder Singh : [1974]1SCR52 which laid down the proposition that whereas clause (a) of Section 83(1) requires only concise statements of material facts and not evidence, clause (b) requires full particulars of corrupt practices and as full a statement as possible of the names of parties who committed corrupt practice and the date and place of the commission of each such practice. In the context of the said case, it was held by the Supreme Court that the statements made in the said petition were neither vague nor general, nor did they lack any material particulars.
22. In order to appreciate the contention of the learned counsel appearing for the respondent I have carefully perused the contents of the aforesaid paragraphs 5 to 7 also. In my considered opinion, the allegations contained in paragraphs 3 & 4 have not been amplified and/or explained by giving material facts in paragraphs 5 to 7 of the petition. Paragraph 5 relates to casting of bogus votes by impersonation. It has not been alleged therein that the said bogus votes were polled in favor of the petitioner herein. Paragraph No. 6 on the other hand contains reference to a list of 23 voters who have died and that some bogus persons have cast votes on their behalf. Paragraph No. 7 deals with the list of 130 voters, who were alleged to be non-existent persons, but on whose behalf votes have been cast. A reading of the aforesaid paragraph would also indicate that the statements made therein are vague statements, for it does not even contain a statement that such voters have cast their votes in favor of the petitioner herein. Except for giving the names of such persons no further facts have been pleaded. In paragraph No. 5 of the election petition, the election petitioner has simply stated that some persons impersonated the actual voters who had shifted and left the area. Names and exact number of such persons who allegedly impersonated, have not been given. Even the polling station number has not been provided with while making the aforesaid allegations. In paragraph No. 6 an allegation has been made that some bogus votes had been cast on behalf of the dead persons, again without giving any particulars thereto. Contents of paragraph 7 also, in my considered opinion, are vague statements and do not give a concise statement of material facts, for even the polling station numbers in respect of which it is alleged that some persons came for bogus voting, have not been given. Thus, the contents of paragraphs 3 to 7 which are very material paragraphs for trial of the election petition, contain vague and uncertain statements and cannot be said to be a concise statement of material facts. The allegations made in the aforesaid paragraphs are not definite and the same are full of uncertainties. The statements in paragraphs 3 to 7 as pleaded would allow the election petitioner to make a fishing and roving enquiry which is not permissible as has been laid down by the Supreme Court.
23. Another plea of the counsel appearing for the petitioner is that the verification appended to the petition is not in accordance with the requirement of Section 15 of the Act. Verification according to the aforesaid provision has to be in the manner as laid down in the Code of Civil Procedure. I have perused the verification appended to the present petition and on perusal of the contents thereof. I find that the respondent (election petitioner) has verified the contents of the petition as contained in paragraphs 1 to 17 to be true and correct to his knowledge. The same, however, cannot be said to be not in terms of the verification as laid down in the Code of Civil Procedure and the said plea of the petitioner is found to be without any merit. In terms of the provisions of Rule 81 of the Rules, if the election petition does not contain a concise statement of material facts the same could be dismissed. As the five paragraphs, which are very relevant and material paragraphs in the election petition containing specific allegations against the petitioner, are devoid of statements of material facts constituting a cause of action, I have no other option but to allow the present petition. Consequently the election petition stands dismissed in terms of Rule 81 of the Rules. Accordingly, the election petition stands dismissed for non-compliance of the provisions of Section 15(iv) of the Act and in terms of the provisions of Rule 80 of the Rules. In the facts and circumstances of the case, I leave the parties, to bear their own costs.