N.J. Pandya, J.
1. The petition relates to the election held in the month of February 1995. The petitioner was contesting the election from 26-Jamnagar Rural (Reserved S.C.) Constituency for the State Assembly. He was defeated by respondent No. 1. The grievance made in the petition is that respondent No. 1 succeeded in the election by corrupt practice. The corrupt practices alleged are as under:
(i) that the petitioner was not only a sitting member but a member of the Cabinet of the State Government ruled, at the relevant time, by the Indian National Congress and he had got printed a hand-bill setting out the alleged achievement of respondent No. 1. What is objectionable to the said hand-bill Annexure B page 30 is that National Flag was printed diagonally on the top right hand comer on its reverse side of the hand-bill;
(ii) that an anti-social element was not only given protection by respondent No. 1 but had seen to it that he is not detained under PASA, though a warrant was issued against him, till counting was over and results were declared and that during the interregnum, the said person, Vijaysinh Jethwa by remaining present throughout the campaigning and particularly during counting, had influenced the outcome in favour of respondent No. 1 and that this Mr. Jethwa was able to do as he was having considerable influence in the area on account of his anti-social activities and the ill-reputation that he had gained of being a headstrong person and capable of doing anything that he would want to achieve his object.
2. Respondent No. 1 has filed written statement and besides the main contesting respondent, there are replies filed by other respondents also.
3. Finally, issues came to be filed at Exh. 16, where issue No. 1 related to the non-maintainability of the petition as it did not conform to or comply with the provisions of Representation of the People Act, 1951 and therefore, the petition is liable to be dismissed under Section 86 of the Act.
4. Respondent No. 1, therefore, filed application Exh. 17 requesting that issue No. 1 be heard as preliminary issue. This request came to be granted and arguments were heard on preliminary issue on 3rd May 1996.
5. After the hearing was over, on behalf of the petitioner, a request was made to give time, so that he may consider whether an amendment application be filed or not. It eventually came to be filed at Exh. 18 on 28th June 1996. By a separate order, that application has been dismissed.
6. Coming to the petition itself, it is pertinent to note that mainly two grounds are alleged. One is the use of National Flag on the said hand-bill Annexure B page 30 and the other is that the petitioner had taken help of said Vijaysinh Jethwa in his campaigning. The averments are to the effect that the presence of Jethwa created an atmosphere of terror and further that his presence with respondent No. 1 or an impression that he is supporting respondent No. 1 was enough to browbeat the voters to vote in favour of respondent No. 1. Obviously, the allegations pertaining to Mr. Jethwa are too general a nature. However, in respect of both, what is more important is that nowhere is it clear in the petition that either of these activities were done by respondent No. 1 himself or his election agent and if it was done by any other person it was done with consent of either of the two.
7. This is a material ingredient of corrupt practice, as understood under Section 123 of the said Act. These particulars are required to be set out in the petition as per Section 83. The particulars set out in the amendment application clearly indicate that these things having been left out in the petition; at a very late stage only when the attention of the petitioner is drawn to it, in the course of hearing of issue No. 1 as preliminary issue, these details are sought to be supplied.
8. In case of Manohar Joshi v. Nitin Bhaurao Patil and Anr., reported in : AIR1996SC796 , the Hon'ble Supreme Court has clearly laid down that the material particulars should be pleaded and proved, otherwise, the petition cannot be sustained. This exactly is the position in the instant case.
9. The second decision in this regard is : [1989]3SCR958 U.S. Sasidharan v. Karunakaran and Anr. where it has been clearly held that the petition must set forth material facts constituting corrupt practice.
10. The petitioner fails, looking to the manner in which the aforesaid two allegations are to be found in the petition, that it has been done with a view to obtaining or procuring assistance for furtherance of prospect of election of the candidates, i.e., respondent No. 1.
11. The material facts form the basis of allegation against the successful candidate by a petition and particulars with regard to the same would be details of the material facts. These details are also equally necessary to be averred in the petition, because then only, it will be possible for the respondents to meet with the petitioner's case.
12. However, in absence of material facts and particulars as required under the provisions of the said Act, the petition would become unsustainable. The submissions made on behalf of respondent No. 1 are, therefore, accepted and the petition is dismissed with costs. The cost is quantified at Rs. 3,000/-