ORDER
M. Chockalingam, J.
1. Election Petition No.6 of 2004 has been filed by the first respondent herein seeking a declaration that the election of the returned candidate namely the first respondent therein (petitioner herein) for No.3, Madras (South) Parliamentary Constituency in the election held on 10.5.2004 is void.
2. Now, the instant original application has been filed by the first respondent in the Election Petition No.6/2004 seeking rejecting of the said election petition under Order VII Rule 11(a) of the Code of Civil Procedure.
3. The case of the petitioner is as follows:
(a) The election petition is not maintainable in law. The pleadings in the election petition do not project any cause of action and do not contain any material facts constituting any cause of action and a triable issue. Under the circumstances, the election petition is, therefore, liable to be rejected in limini under Order VII Rule 11(a) C.P.C.
(b) The entire averments in the election petition project only one fact that the petitioner herein had disclosed in Annexure-I of Form No.2A made under Rule 4 of the Conduct of Election Rules, 1961, relating to nomination papers, that he has two spouses and, the said fact taken along with Section 17 of the Hindu Marriage Act and Sec. 494 of the I.P.C., would disqualify him from contesting in the election and as such there has been improper acceptance of his nomination to contest for the South Madras Parliamentary Constituency.
(c) The judgment of the Supreme Court in Union of India Vs . Association of Democratic Rules : [2002]3SCR696 , relied on by the election petitioner, does not apply to the present facts of the case, and it is totally misquoted. The law laid down by the Supreme Court in the said judgment, is that the Election Commission should require in the exercise of its powers under Article 324 of the Constitution of India, each candidate to submit as a necessary part of his nomination papers, information on an affidavit in respect of items specified by the Supreme Court. The Supreme Court further held that the limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with the elections, the Commission is required to act in conformity with the said provisions. In case where the law is silent, Article 324 is a reservoir of power to act for the avowed purpose having free and fair elections. To put in other words, the Election Commission under Article 324 can only supplement and not supplant the Leg islation occupying a particular field. Sec. 100 of the Representation of People Act sets out various grounds for declaring an election to be void, and nobody has the powers to add any further grounds in Sec. 100. The election petitioner has filed the above said Election Petition to declare the election of the petitioner herein as void on the grounds within the meaning of Sec. 80 read with 100(1)(d)(iv) of the Representation of People Act. From the provisions of law under which the election petitioner seeks to have the petitioner's election set aside, i t is clear that there should be a non-compliance of either the provisions of the Constitution or of the Representation of People Act or of any rules or orders made under this Act. As regards any orders made under this Act, the Election Commission of India has not been vested with any powers to make any orders under the provisions of the Representation of People Act. It was, therefore, the Supreme Court held in the decision stated supra, that in the absence of any parliamentary legislation occupying a particular field, the Election Commission can issue orders and directions under Article 324 of the Constitution.
(d) In this case, the petitioner had given necessary information as required of him by declaring that he has two spouses living. Therefore, he had complied with the order made by the Election Commission under Article 324 of the Constitution. He had not violated any provisions of the Constitution. Non-compliance with the order made under Article 324 of the Constitution has to be distinguished from noncompliance of any provisions of the Constitution. The Parliament while indicating in Sec. 100(1)(d)(iv) of the Act, regarding non-compliance of the provisions of the Constitution did not go further and stipulate orders made under the Constitution also as it had stipulated in respect of 'this Act' (meaning of Representation of People Act) or of any Rules or Orders made under this Act. If Sec. 100(1)(d)(iv) has to be read as including non-compliance with the orders made under the provisions of the Constitution, then it will tantamount to redrafting Sec. 100(1)(d)(iv) by adding the words 'Orders made under provisions of Constitution' for which nobody has the power excepting the Parliament. As pointed out by the Supreme Court in the said decision, the whole object of orders being made under Article 324 of the Constitution in fields which are not occupied by Parliamentary Legislation, that is the conduct of elections, is to get information to be filed as Annexure to the nomination forms, which are merely information regarding a candidate so as to enable the voters to judge for themselves as to whether a candidate should be elected or not. If the particulars that have got to be filled up by a candidate in the nomination paper are not filled up, then perhaps the Returning Officer could reject the nomination paper itself. If particulars have been filled up and the facts disclosed in filling up such particulars have not led to any conviction for any offence, which alone might become relevant under Sec. 8 of the Representation of People Act, there is no question of any disqualification of a person from contesting the election, which would arise.
(e) The thrust of the case of the election petitioner is that the disclosure of two wives by the petitioner herein in the Annexure to the nomination papers and as such Sec. 17 of the Hindu Marriage Act read with Sec. 494 of the I.P.C. would disqualify him. This averment has been made by the election petitioner without any regard to either the ingredients of Sec. 17 of the Hindu Marriage Act or the ingredients of Sec. 494 of the I.P.C. read with Sec. 198 of the Criminal Procedure Code. The Supreme Court has repeatedly held that the meaning of expression used in Sec. 494 of the I.P.C. namely 'such marriage being void' must mean only marriages validly made. If the marriage is not a valid marriage, then it is no marriage at all in the eye of law. The bare fact of a man and a woman living as husband and wife, does not at any rate normally give them the status of husband and wife. As per Sec. 17 of the Hindu Marriage Act, unless the marriage is celebrated or performed with proper ceremonies and in due form, it cannot be said to be solemnized. It is, therefore, essential for the purpose of Sec. 17 of the Act that the marriage to which Sec. 494 of I.P.C. applies, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married will not make the ceremonies prescribed by law or approved by any established custom. Under Sec. 198(1) proviso (c), it has been specifically indicated that in the case of a wife, complaint may be made on her behalf by certain persons. This provision shows that where the wife is aggrieved by an act of bigamy by her husband, she alone is the competent person to give a complaint, but such complaint could be laid by certain other relatives of the wife as stated in the proviso (c) to Sec. 198(1) on behalf of the said wife. In the case of husband, in the absence of any such provisions, the husband alone should give a complaint. The position in law is well established that there could be a prosecution and a conviction for an offence under Sec. 494 of I.P.C. only on the basis of a complaint filed by the wife or her relatives or by the husband and by nobody else. In this case, the election petitioner is not a person who could complain against an act of bigamy against another candidate, and such a complaint is specifically barred under the statutes. The averments regarding bigamy have been made without any material fact namely that the marriage was solemnized after following the prescribed ceremonies. The mere allegation of bigamy without any proof cannot be taken to be a conviction within the meaning of Sec. 8 of the Representation of People Act for the purpose of disqualifying a candidate.
(f) The above said election petition has been filed only for the sake of being rejected by this Court, and such rejection has to be done under Order VII Rule 11(a) of C.P.C. since the election petition taken as a whole does not show any cause of action or a triable issue, and the election petition is therefore not maintainable in law, and the same has to be rejected in limini. The election petition is liable to be rejected in view of the fact that under Rule 12 of Rules of the Madras High Court 'Election Petitions 1967' Original Side Rules, it is clearly prescribed that subject to the foregoing rules and to the extent they are not inconsistent with the provisions of the Act, the Rules of the High Court 1956 (Original Side) shall as far practicable be observed in all Election Petitions and all applications taken in respect of them.
(g) The election petitioner herein has signed the election petition in Tamil, and as such the procedure prescribed in Rule 9 of Order II relating to the form of proceedings framed under the Rules of the Madras High Court Original Side, has not been adhered to in that it has not been duly affirmed before the Commissioner of Oaths or a Notary Public which verification should be in accordance with Form 7 and 8 which specifically prescribes a particular jurette for persons signing in Tamil. Hence, this application.
4. The first respondent filed a counter with the following allegations.
(a) It is not for the petitioner to state that there is no cause of action or any material facts constituting a cause of action or triable issue. The petitioner is reluctant to face the trial and wants summary disposal of the petition by attempting to seek for rejection of the plaint. The election petition clearly discloses the cause of action. The cause of action means a bundle of facts, which would go to prove a certain matter. In this case, the cause of action is clearly stated in the petition, and the facts would further go to show that the petitioner herein has contracted the second marriage when the first marriage was in subsistence and therefore, has violated the provisions of Sec. 494 I.P.C. and Sec. 17 of the Hindu Marriage Act. Therefore, the acceptance of the nomination of such person is invalid in the eye of law, and consequently, it has materially affected the result of the election of the returned candidate. The Supreme Court in Union of India Vs . Association of Democratic Rules : [2002]3SCR696 has categorically held that it is mandatory for a candidate to file an affidavit stating his educational qualification, his assets, criminal charges if any etc. The entire judgment has been misinterpreted by the petitioner. The judgment while dealing with Article 324 of the Constitution of India, reaffirms the supremacy and superintendence of conduction of the elections by the Election Commission. The Hon'ble Supreme Court went on to add that in the absence of any legislation on the field, the requirement to give certain information under Art. 324 would give over-riding powers to the election commission to direct the candidates to furnish information. If the petitioner is aggrieved by the said order of the Hon'ble Supreme Court, he could have challenged the same by way of a review or sought to move a larger bench of the Hon'ble Supreme Court.
(b) The declaration of facts in the form of an affidavit whether in exercise of powers under Article 324 or in view of the judgment cited above, will not help the petitioner in any manner and it is for the Courts to interpret the law. While interpreting Art. 324, the Hon' ble Supreme Court has held that superintendence, direction and control of election vest with the Election Commission and therefore, it goes without saying that the matters which are not specifically dealt with under the Representation of Peoples Act will still be a ground for declaration that the election is invalid under Sec. 100(d)(1) of the R. P. Act, as the acceptance of an invalid nomination is a material fact and by improper acceptance of the nomination, the law could be set into motion, since Sec. 100(1)(d)(iv) would clearly state that by noncompliance of the provisions of Constitution or any rules or orders under this Act this election can be set aside. Violation of the Constitution would mean violation of any law made in exercise of the powers under the Constitution of India and therefore, the provisions of the Constitution as regards the powers under Art. 324, would also attract the provisions under Sec. 100(1)(d)(iv) o f the R.P. Act. Giving such a declaration is not an empty formality, and the duty of the candidate does not end by merely declaring for the sake of declaring and the purpose of declaration ought to be read into the intention. The Hindu Marriage Act defines that the second marriage when the first marriage is subsisting, is unlawful and is termed as bigamous. It would be fallacious to assume that the said declaration is only a formality and that it does not have any legal repercussions and provision of Sec. 100(1)(d)(iv) of the R.P. Act would show that the petitioner who has been elected as a Member of Parliament from the Madras South Constituency and whose nominations ought to have been rejected, has come out with the pleading as if the judgment cited supra merely directs to declare and render information and that it does not require compliance or sanctions in the case of violation.
(c) The Supreme Court has held that taking by oath is not an empty formality and it has some credibility and meaning and if there is a violation of law and when the same is in exercise of powers of the Constitution, then the candidate's affirmation on oath would become invalid. It is not only the information but also the contents of the information, which are important. If the contents of the information discloses any violation of any law, order or direction issued in exercise of powers under the Constitution of India, it would clearly spell out that such persons are not eligible to stand in elections. It is not the case of the petitioner that he does not have two wives. In case of clear admission of fact, there is no requirement to separately prove the contents when the petitioner himself has admitted that he has two wives, and therefore, any attempt to interpret the Section would be wholly immaterial. If it is the case of the petitioner that he does not have two wives, then the declaration under oath in the form of an affidavit becomes false. Whenever declaration of facts by a candidate is later found to be false, it would attract the provisions of the respective law.
(d) The defence taken by the petitioner that no ceremony was performed and there is no proper solemnization, is impermissible in law as there is clear admission at the first instance by the petitioner that he has two wives. This is not a case of criminal prosecution under Sec. 494 I.P.C. by invoking the provisions of Sec. 198 of Cr.P.C. In this case, in view of the admitted position that too on oath in the form of an affidavit, it would not be required to be separately proved. The question of prosecution as stipulated under Sec. 198 of Cr.P.C. for the offence under Sec. 494 of I.P.C. does not arise in view of the said admission. The provisions of law as regards acceptance of nomination and commission of admitted offence have to be examined in detail by the Court of law and it cannot be summarily done in the application to reject the petition. The Hon'ble Supreme Court as well as this Court has repeatedly held that Order 7 Rule 11 can be applied only when there is no cause of action. In this case, the cause of action has been clearly set out in the petition and similarly, the violation of the provisions of law, etc. has also been stated, and therefore, seeking to reject the petition stating as if there is no cause of action, which has arisen, is totally misconceived. The very fact that the petitioner has chosen to file an affidavit denying the application of the provisions of the Constitution, the judgment of the Hon'ble Supreme Court and the rule making power under Article 324 would justify and go to show that there are triable issues. These issues cannot be summarily decided in the course of the enquiry to reject the plaint.
(e) The first respondent has to make detailed legal submissions with regard to the application of Sec. 100 of the Representation of People Act, Article 324, the provisions of the Representation of People Act, the question as to whether the judgment of the Supreme Court is not res-integra and further as to whether Sec. 100 of the said Act falls within the meaning of occupied field of legislation not leaving it open for the Election Commission in exercise of powers under Article 324, and all these questions could be gone into in detail and short cut method for dismissing the application cannot be adopted. The Court is not at this stage required to go into the comparative pleas and the defence of the petitioner with regard to the averments in the petition. What is required at this stage is only to ascertain whether there is prima facie, for a triable cause of action on the basis of the averments in the petition. The election petition cannot be rejected in limini without trial as all these questions ought to be decided at length, and prima facie averments would disclose existence of violation of law. The Court is not expected to sieve through the evidence with a magnifying lens at this stage. The test is whether the averments made in the petition, on the face of it, would give rise to triable issues or not.
(f) The election petitioner knows to read and write English and has affixed the signature in Tamil, and thereby, the provisions of Order 2 Rule 9 would not be attracted. Otherwise, no person would be able to affix the signature in his native langua if the petition is in English. The requirement to explain the averments by the Commissioner of Oaths or a Notary would arise only when a person is unable to read and write English. In this case, the said condition is satisfied, and hence, insisting upon verification would be meaningless. Therefore, the petitioner's apprehension is totally misconceived and without any basis. The petitioner has not made out a case for rejection of the petition, and there is a substantial question of law and interpretation of provisions of the Constitution as well as the Representation of People Act, and there are various judgments which ought to be relied upon. Hence, this application is liable to be dismissed.
5. As could be seen above, the main election petition is filed by the first respondent herein seeking to declare the election of the returned candidate the first respondent therein for No.3 Madras (South) Parliamentary Constituency in the election held on 10.5.2004 as void on the ground that the declared candidate has two spouses living and has declared assets in their names; that he has admitted the fact that he has contracted second marriage when the first spouse was living; that since the declared candidate is a Hindu, the provisions of Hindu Marriages Act, 1955, would apply to him; that he has committed bigamy within the meaning of Sec. 17 of the Hindu Marriages Act, and he is liable to be punished under Sections 494 and 495 of the I.P.C.; that in view of the admission made by him, it would be clear that he has violated the law for the time being in force, and hence, he should be termed as one who is statutorily disqualified. Pending the said election petition, the declared candidate who is the first respondent in the election petition, has taken out the instant application to reject the election petition under Order 7 Rule 11(a) of the C.P.C. stating that the averments in the election petition taken as a whole do not make out any cause of action or a triable issue, and therefore, the election petition itself was not maintainable in law.
6. Advancing his arguments on the application seeking to reject the election petition, Mr.V.T.Gopalan, learned Senior Counsel appearing for the petitioner, would submit that in the election petition, the first respondent/petitioner was harping upon only one issue namely when the declared candidate gave the particulars in Columns (A) and (B) relating to the details of movable assets and immovable assets in the annexure filed along with the nomination papers, he had disclosed the property owned by Porkodi as well as Renukadevi, who have been described as his two spouses, and thus, by contracting second marriage during the life time of the first marriage, the declared candidate has violated the provisions of Sec. 17 of the Hindu Marriage Act and Sec. 494 of I.P.C., and hence, the election of the petitioner/first respondent was void on the grounds within the meaning of Sec. 80 read with Sec. 100(1)(d)(iv) of the Representation of People Act; that the instant application has been filed by the declared candidate in the election petition under Order VII Rule 11 of the C.P.C. read with Sec. 83(1) of the Representation of People Act to reject the election petition itself in limini and summarily, since the election petition does not disclose any cause of action or any triable issue; that it has been well settled by the Apex Court that an election petition can be summarily dismissed, if it does not disclose any cause of action, and the Court need not probe into the facts on the basis of the controversies raised in the counter; that the only issue raised by the election petitioner is that the declared candidate has two wives and the said issue per se does not disclose any cause of action or a triable issue even if the disclosure made by the returned candidate as stated above, described the properties as belonging to two spouses; that along with the nomination paper, a candidate is also obliged to file an affidavit stating as to whether he had suffered any conviction or whether any criminal cases are pending against him; that the declared candidate in his affidavit has stated that he has not suffered any conviction and that no criminal cases were pending against him; that the said fact is not disputed by the election petitioner; that it is a fact that the returned candidate has filled up the columns A and B relating to the assets and disclosed under the columns Spouse(s) 'assets owned by two spouses' and as such, has complied with all the requirements of disclosure of assets in the names of the spouses, and thus, the declared candidate cannot be accused of any non-disclosure in this behalf.
7. Added further, the learned Senior Counsel that insofar as the prosecution culminating in conviction which would be regarded as a disqualification to contest in the election, Sec. 8 of the Representation of People Act, 1951, provides certain prosecutions and convictions as disqualifications; that the returned candidate has not suffered any such prosecution or conviction, which would be regarded as a disqualification as per Sec. 8 of the Act; that apart from that, that was not the case of the election petitioner also; but, the election petitioner has stated that the returned candidate is liable for prosecution under Sections 494 and 495 of the Indian Penal Code; that Sec. 17 of the Hindu Marriage Act and Sections 494 and 495 of I.P.C., considered along with Sec. 198 of Cr.P.C., contemplate that a charge of bigamy has to be complained of only by the first wife or certain named close relatives mentioned in Sec. 198 of Cr.P.C.; that no other person is entitled in law to complain about the bigamy, and as such, even the election petitioner cannot lay complaint of bigamy against the declared candidate; that under Sec. 17 of the Hindu Marriage Act, any marriage between two Hindus solemnized after the commencement of the Act, is void, if at the date of such marriage, either party had a husband or wife living and that the provisions of Sections 494 and 495 of I.P.C. shall apply accordingly.
8. Placing reliance on the decisions reported in : 1965CriLJ544 ; : 1966CriLJ472 ; AIR 1971 SUPREME COURT AIR 1153 SUPP.(2) SC 616 the learned Senior Counsel would submit that the Apex Court on number of occasions has interpreted the word ' solemnized' to the effect that the marriage shall be celebrated with proper ceremonies and in due form and that any conviction based on admission alone cannot stand; that in the instant case, the election petitioner has no locus standi to complain about bigamy against the petitioner herein; that there is not even any averment that the declared candidate has contracted the second marriage, the solemnization of which was as per Sec. 7 of the Hindu Marriage Act, and as such, Sec. 17 read with Sections 494 and 495 would be attracted; that whether a second marriage was solemnized as per Sec. 7 of the Hindu Marriage Act, is a crucial and material fact which has got to be pleaded in the case of bigamy; that in the absence of any pleading, even assuming without admitting that the petitioner in the above application and the first respondent in the election petition has contracted second marriage that by itself would not attract the application of Sec. 17 of the Hindu Marriage Act or the penal provisions of Sec. 494 of I.P.C.; that in the absence of necessary pleading in that regard, no evidence can be let in and no amount of evidence can cure the defect in the pleading; that in the absence of any conviction for bigamy, the mere fact that a person has disclosed the properties in the names of the spouses cannot by itself be regarded as a disqualification; that the stand taken by the election petitioner in the counter if read together, proves the inconsistent stand taken with regard to the proof necessary in establishing bigamy; that the requirement as to the disclosure of particulars of assets of the spouse(s) came to be insisted upon by the Election Commission pursuant to the directions of the Supreme Court in the decision reported in : [2002]3SCR696 , wherein the Supreme Court held that where the provisions of the Representation of People Act are silent, the Election Commission in exercise of its powers under Article 324 of the Constitution of India, can give directions and the Election Commission was directed to insist upon the disclosure of assets by his spouse(s), the very object being that the voter should be informed about the candidate that he has to choose judged by disclosures; that pursuant to the directions of the Supreme Court, the Representation of People Act was amended, by which Sec. 33A was introduced to the effect that only when a person is accused of any offence etc., in a pending case, the conviction of a person alone to be stated in the affidavit and under Sec. 33(B) it was provided that no candidate is liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Act or Rules made thereunder; that Sec. 33(B) was struck down by the Apex Court in its decision reported in : [2003]2SCR1136 , wherein it was held that the earlier judgment of the Supreme Court reported in : [2002]3SCR696 had attained finality, and it was further held that a voter has got a fundamental right under Article 19(1)(a) to know the antecedents of a candidate for various reasons recorded in the earlier judgment as well as in that judgment, and thus, the requirement to state the movable and immovable assets of the spouse(s) as directed in the earlier judgment of the Supreme Court in : [2002]3SCR696 holds the field, and the object for making such disclosure was only to put the voter on notice about the antecedents of the candidate, and such disclosure cannot be taken to be a disqualification and particularly when the returned candidate has not suffered any disqualification under Sec. 8 of the Representation of People Act.
9. Advancing his further arguments, the learned Senior Counsel would submit that the election petition has got to be viewed with reference to Sec. 100(i)(d)(iv) of the Representation of People Act, which is the only Section providing for setting aside an election; that the Hon'ble Supreme Court has declared the law that the grounds for declaring an election void must strictly conform to the grounds mentioned in Sec. 100 and the allegations of disqualification have to be construed very strictly, and it cannot be analysed by importing any meaning other than the permissible on strict interpretation of the expression used; that further the directives issued by the Election Commission under Article 324 of the Constitution cannot be brought within the ambit and scope of Sec. 100(1)(d)(iv) for the reason that Sec. 100(1)(d)(iv) merely states 'by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act'; that if the directives issued by the Election Commission under Article 324 of the Constitution, is also to be brought within the scope of Sec. 100(1)(d)(iv), then the said provision has to be rewritten as 'by any non-compliance with the provisions of the Constitution or of any directives issued under the Constitution etc.', which excepting the Parliament, no other person can have the power to add words to the statute; that the mere allegation of bigamy, in the face of the admitted fact that the first respondent has not suffered any conviction, cannot come within the ambit of Sec. 100(1)(d)(iv); that if Sec. 100(1)(d)(iv) is analysed, non-compliance of the provisions of the Constitution can be a ground for setting aside the election; that the election petitioner has not alleged any non-compliance of the provisions of the Constitution; that apart from that, there was no non-compliance of the provisions of the Representation of People Act or of any Rules or Order made under the Act, and thus, there is absolutely no averment in the election petition that the returned candidate has committed any violation of the provisions of the Representation of People Act or any Rules or Orders made under the Act; that the prime plea of the election petitioner that the first respondent has committed violation of the provisions of the Hindu Marriage Act, which is a parliamentary enactment, and hence, the declared candidate's election is to be set aside under Sec. 100(1)(d)(iv) cannot be countenanced in law; that if such an interpretation is accepted, then, it would be really tantamount to adding words to Sec. 100(1)(d)(iv) for which nobody has got the power excepting the Parliament; that the said provision cannot be stretched the way the election petitioner would like to do by bringing the mere charge of bigamy within the ambit of Sec. 100(1)(d)(iv); that the election petitioner cannot take advantage of and convert the directives of the Supreme Court and consequently, the directives of the Election Commission, to disclose the assets of the spouse(s) for the information of the voter to decide as to whom the voter should caste his vote as a disqualification which would be a ground for declaring the election to be void under Sec. 100(1)(d)(iv); that the plain language of the provision does not admit any such disqualification as a ground for setting the election void; that the averments in the election petition taken as a whole making the disclosure of assets in the name of spouse(s) which is required to be complied with by a candidate for the information of the voter cannot be treated as a ground for declaring the election to be void under Sec. 100(1)(d)(iv); that even assuming that the declared candidate has two spouses to be true, which was the only ground taken in the election petition, the election of the returned candidate cannot be set aside under Sec. 100(1)(d)(iv); that the election petitioner has not disclosed any material fact or cause of action disclosing a triable issue; that the election petitioner cannot succeed under the provisions of Sec. 100(1)(d)(iv) on a mere charge of bigamy, and therefore, the election petition is totally frivolous and has got to be rejected summarily under Order VII Rule 11.
10. Added further, the learned Senior Counsel that the election petition has to be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings; that under Rule 2 of Rules of Madras High Court ' Election Petitions 1967, the election petition should be verified in the manner provided for under C.P.C.; that under Order VI Rule 15(4), the person verifying the pleadings should also furnish an affidavit in support of his pleadings; that in the instant case, the election petitioner has not filed any affidavit in support of his pleadings to verify the same as required under the said Rule, and thus, the election petition is liable to be dismissed in limini under Sec. 83(3) of the Representation of People Act; that apart from that, the election petitioner has signed the election petition in Tamil without the prescribed jurette form by persons signing in Tamil; that the election petitioner would state in his counter that even though he has signed in Tamil, he knew English; that such a plea cannot be countenanced in view of requirement of Rule 9 of Order II of the Original Side Rules read with Form 7 and 8 which specifically prescribes a particular Jurette for persons signing in Tamil; that on that ground also, the election petition is liable to be dismissed for non-compliance of the provisions of the Representation of People Act, and hence, the election petition has got to be rejected as one not maintainable. In support of his arguments, the learned Senior Counsel cited very many decisions of the Apex Court.
11. Countering the above contentions, the learned Senior Counsel Mr.T.V.Ramanujam, appearing for the election petitioner, the first respondent herein, would submit that it cannot be stated that there was no cause of action or any material fact constituting a cause of action or a triable issue; that the returned candidate has come forward with the instant application seeking a summary disposal by attempting to seek the rejection of the plaint by invoking the provisions under Order VII Rule 11; that under Order VII Rule 11, a plaint could be rejected when it does not disclose a cause of action; that in the instant case, the election petitioner has clearly disclosed a cause of action, and therefore, the allegation that there was no cause of action to proceed was totally misconceived; that the cause of action would mean a bundle of facts which would go to prove certain allegations; that in the election petition, the election petitioner has clearly stated the cause of action; that he has also clearly averred that the returned candidate has contracted the second marriage in violation of the provisions of law; that the said bigamous marriage is punishable under Sec. 494 of I.P.C. and Sec. 17 of the Hindu Marriage Act; that those facts are clearly mentioned in the affidavit, and those facts are true, and hence, the acceptance of the nomination papers by the Returning Officer was invalid in the eye of law, and thus, it has materially affected the result of the election of the returned candidate; that the election petition filed by the election petitioner, if read as a whole, would clearly reveal that there was a clear cause of action, and hence, the improper acceptance of the nomination by the Returning Officer cannot be summarily decided; that it has to be decided only on evidence; that the Apex Court in Union of India v. Association of Democratic Rules (2002) 5 SCC 2940 has held that it was mandatory for a candidate to file an affidavit stating his educational qualification, his assets, criminal charges, etc.; that the entire judgment has been misinterpreted by the petitioner herein; that it is pertinent to point out that the Apex Court has observed in the said judgment that in the absence of any legislation on the field, the requirement to give certain information under Article 324 would give over-riding powers to the Election Commission to direct the candidates to furnish information; that it is not the question of a field being occupied by a law made by the Parliament; that it related to the very exercise of the powers under Article 324; that if the petitioner was aggrieved by the said order of the Apex Court, then he would have challenged the same by way of a review; that the Apex Court has given a categorical ruling which is the law of the land, under Article 141 of the Constitution; that the question is not as to whether Article 324 supplants the legislation or supplements the legislation while interpreting Article 324 of the Constitution; that the Apex Court has categorically held that such declaration of information is essential in the interest of democratic principles; that it was a right of every voter/electorate to know about the background, qualificat ion and assets of the candidate; that in the circumstances, the declaration of facts in the form of the affidavit whether in exercise of the powers under Article 324 or in view of the judgment of the Apex Court would not help the petitioner in any manner, and it is for the Courts to interpret law.
12. Added further the learned Senior Counsel that the election of the first respondent returned candidate is invalid under Sec. 100(d)(i) of the Representation of the People Act as there was acceptance of an invalid nomination; that this was a material fact; that by improper acceptance of the nomination, the law could be set in motion; that according to Sec. 100(1)(d)(iv) of the Act, whenever there is a noncompliance of the provisions of the Constitution or Rules or Orders under the Representation of the People Act, an election can be set aside; that it should not be forgotten that under such circumstances, the provisions of the Constitution insofar as the exercise of powers under Article 324 was concerned, would only spell out the Constitutional powers of the Election Commission; that the violation of the Constitution would mean the violation of any law made in exercise of the powers under the Constitution of India, and hence, it would attract the provisions of Sec. 100(1)(d)(iv) of the Act; that every candidate is required to give a declaration; that it is to be remembered that the declaration is not an empty formality; that the duty of the candidate does not come to an end by making a mere declaration; that the purpose of the declaration is that it should reach the voter so that the voter before exercising the franchise, can have an idea about the candidate; that it would be imperative to know that the representatives of the people should be above board and they themselves should not be seen to be violating the law; that the Hindu Marriage Act was a law made by the Parliament of India in exercise of the law making powers under the Constitution; that the said Act defines second marriage when the first marriage is subsisting is unlawful and bigamous, and hence, the question can be decided only during trial.
13. The learned Senior Counsel would further submit that the returned candidate as a Member of the Parliament has taken oath stating that he would bear true faith and allegiance to the Constitution of India as by law established that he would uphold the sovereignty and integrity of India; that the Apex Court has held that taking up oath was not an empty formality, and it has credibility and meaning; that if there was any violation of law, when the same was in exercise of the powers of the Constitution, the candidate's affirmation on oath would become invalid; that the information furnished by the candidates were not only information, but also contents of information which were very important; that when the contents of the information given by the candidate disclose violation of law or of order or of direction issued in exercise of the powers under the Constitution of India, it would clearly indicate that such person was not eligible to contest in election; that it was not the case of the returned candidate that he did not have two wives; that it was a clear case of admission of fact, and hence, there was no requirement to separately prove the contents; that the returned candidate has putforth his own interpretation of law and has stated that the second marriage was not validly done; that in the instant case, if the returned candidate comes forward with a case to state that he actually did not have two wives, then the declaration given by him by way of an affidavit, becomes false, and this would also attract the provisions of the respective law; that in view of the admission made by the returned candidate, it is for him to state that there was no solemnization of marriage as required in law, and thus, the second marriage was invalid, and it was not for the election petitioner to plead or prove the same in view of the admission made, and thus, the issues cannot be decided summarily, and under the stated circumstances, it cannot be stated that the election petitioner has not disclosed any cause of action; that the election petitioner has disclosed the necessary cause of action; but, whether such cause of action would be sufficient or not to get the relief has got to be decided only after the framing of issues and the evidence adduced on those issues by the parties.
14. Added further the learned Senior Counsel that the requirement to get the election petition verified by an interpreter or an Oath Commissioner would arise only when the election petitioner was not able to read and write; that such a procedure cannot be stretched to mean and include the case where the signature was made in Tamil, and therefore, the contention of the returned candidate was totally misconceived; that so far as the contention of the returned candidate that the supporting affidavit was not filed by the election petitioner was concerned, it cannot be a ground to reject the election petition for the reason that if the supporting affidavit was not filed by the election petitioner along with the election petition, he can be directed to furnish the same before the commencement of the trial; that even after such a direction issued by the Court, if the election petitioner does not comply with the same, it could be considered as one incurable; that the non-filing of the affidavit at this stage cannot be termed as incurable defect; but it could be cured by filing a proper affidavit, and hence the application seeking rejection of the election petition has got to be dismissed. The learned Senior Counsel also cited number of decisions of the Apex Court in support of his contentions.
15. The main election petition seeking a declaration that the election of the returned candidate namely the first respondent therein, is filed on the ground that the returned candidate has admitted in the affidavit filed along with the nomination papers that he has committed bigamy, and hence, his election has got to be declared as void under Sec. 100(1)(d)(i) and (iv) of the Representation of the People Act. Pending the said election petition, the returned candidate has made the instant application to reject the election petition under Order VII Rule 11(a) of the Civil Procedure Code stating that the election petition even taken as a whole, does not show any cause of action or a triable issue. Therefore, the question that would arise for consideration would be 'whether the election petition requires rejection for want of a cause of action and a triable issue?'. In considering such a preliminary objection that the election petition requires a rejection under Order VII Rule 11, the law is well settled that the test should be whether any relief as prayed for, could be granted in favour of the election petitioner if the averments made in the election petition, were proved to be true. The Court has to find out whether those averments disclose a cause of action or a triable issue, but should not probe into the facts on the basis of the controversy raised by the other party. At this juncture, it would be more appropriate to reproduce the decision of the Supreme Court in AZHAR HUSSAIN V. RAJIV GANDHI as to when and under what circumstances the Court could exercise its powers to summarily dismiss the election petition. The Apex Court has held thus: '11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant case has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail. 12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrass ment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matter pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged ina struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win the vote of the people but also to win the vote of the court in a long drawn out litigation before he can wholeheartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as a hindrance if he be trusted with some public office in his elected capacity. He may even have occasion to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern mettle, the constraint introduced by the pendency of an election petition may have some impact on his subconscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant. Since the court has the power to act at the threshold the power must be exercised at the threshold itself in case the court is satisfied that it is a fit case for the exercise of such power and that exercise of such powers is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject the election petition or pass appropriate orders should not be exercised at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled.' From the above it would be quite clear that the powers conferred on the competent Court, should serve the purpose for which the same have been conferred, and it would be meaningless and misconceived to contend that even if the election petition was liable to be dismissed, ultimately it should be so dismissed after a trial was over. Before analysing whether the averments made in the election petition, would disclose a cause of action and a triable issue, it would be better to look into the provisions of law as to the qualification, disqualification and the grounds on which an election of a candidate can be declared void.
16. Article 84 of the Indian Constitution speaks of the qualification for Membership of Parliament. The same reads as follows: '84. Qualification for membership of Parliament ' A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by the Parliament.'
17. What are all the disqualifications for membership in either House of the Parliament are enumerated under Article 102 of the Constitution, which reads thus:
'102. Disqualifications for membership ' (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament -
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.'
18. Sec. 8 of the Representation of the People Act, 1951, enumerates disqualification on conviction for certain offences. Sub-sections (1 ) and (2) of Sec. 8 of the Act speak of the disqualification on conviction for certain offences. But, nowhere the bigamy is shown as one of the grounds for disqualification. It is true that sub-section (3) to Sec. 8 states that a person convicted of any offence and sentenced to imprisonment for not less than two years, other than any offence referred to in sub-section (1) or sub-section (2), shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. At this juncture, it remains to be stated that it is not the case of the election petitioner that the returned candidate does not possess requisite qualification to be a Member of the Parliament as found under Article 84 or he suffers any disqualification as shown in Article 102 or he is disqualified under Sec. 8 of the Representation of the People Act.
19. What are all stated in the election petition in paragraph 43 is 'Therefore admittedly the first respondent who has contracted with second marriage when a spouse is living and therefore has committed bigamy within the meaning of Sec. 17 and is therefore liable for prosecution under Sec. 494 and 495 of the I.P.C.' From the very reading of the pleading by the election petitioner, it would be quite clear that the returned candidate is liable to be prosecuted under Sections 494 and 495 of the I.P.C. To invoke the disqualification under Sec. 8(3) of the Act, the candidate should have been convicted of an offence and sentenced to imprisonment for not less than two years for any offence other than those referred to in sub-section (1) or sub-section (2). It is not the case of the election petitioner that the returned candidate was ever prosecuted or stood charged, tried, found guilty or sentenced to imprisonment. Hence, he does not suffer any disqualification under Sec. 8(3) of the Act.
20. What are all alleged by the election petitioner is that the returned candidate while making his declaration as to the movable and immovable assets in Columns A and B in form 2-A attached to the nomination papers, has stated that those assets were owned by his two spouses. It has to be pointed out that the case of the election petitioner is not the non-disclosure of any assets; but, it is his case that the returned candidate has disclosed that he has got two spouses, which would constitute an admission, and by that admission, he has violated the law of the land for the time being in force, and the same would directly attract the penal provisions of Sections 494 of the I.P.C., and that he can be termed as one who has statutorily disqualified. According to Sec. 17 of the Hindu Marriage Act, 1955, any marriage between the two Hindus solemnized after the commencement of this Act, is void, if at the date of such marriage either party had the husband or wife, as the case may be, living and the provisions of Sections 494 and 495 of I.P.C. shall apply accordingly. Marrying again during the life time of husband or wife is void by reason of its taking place during the life time of such husband or wife and is liable to be punished with imprisonment of either description for a term which may extend to 7 years and also liable for fine under Sec. 494 of the Penal Code. Placing much reliance on the above provisions of law under the Hindu Marriage Act and the Indian Penal Code, the election petitioner has put forth his case stating that the returned candidate has violated the law for the time being in force. A reading of the provisions under Sec. 17 of the Hindu Marriage Act would make it clear that any marriage between the two Hindus solemnized after the commencement of the Act, is void, if on the date of such marriage either party has the other spouse living, and apart from that, the provisions under Sections 494 and 495 of the Penal Code would apply accordingly. In order to invoke and give effect to Sec. 17 of the said Act, so as to declare a marriage between the two Hindus as void for the reason of such marriage taking place during the life time of the other spouse, it is very essential to show that such marriage which is sought to be declared as void should have been solemnized. The Supreme Court in catena of decisions has interpreted the word 'solemnized' as employed in Sec. 17 of the Hindu Marriage Act, to the effect that such marriage should have been celebrated with proper ceremonies and in due form. No doubt, bigamy is punishable under Sec. 494 of the I.P.C. But, an act of bigamy can be complained of only by the first wife or by the named close relatives in view of Sec. 198 of Cr.P.C., and no one else in law is entitled to complain about the bigamy. It is not the case of the election petitioner that there was any complaint as against the declared candidate as to the alleged bigamous marriage or he stood charged, tried, found guilty or sentenced to imprisonment. As per Sec. 198 of Cr.P.C., the election petitioner cannot file a complaint of bigamy against the first respondent.
21. Attractive though the contention put forth by the election petitioner's side that the returned candidate himself has made an admission in the affidavit that he has got two spouses, which would stand a good proof that he contracted the second marriage, the same would not stand the scrutiny of law, in view of the following pronouncements of the Apex Court. The Apex Court has held in BHAURAO SHANKAR LOKHANDE AND ANOTHER V. THE STATE OF MAHARASHTRA AND ANOTHER : 1965CriLJ544 as follows:
'(5) The word 'solemnize' means, in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, therefore, essential, for the purpose of S.17 of the Act, that the marriage to which S. 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom.
(6) We are of opinion that, unless the marriage which took place between appellant No.1 and Kamalabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been ' solemnized' and, therefore, appellant No.1 cannot be held to have committed the offence under S. 494, I.P.C.'
22. Stating the law that the admission of marriage by an accused in a criminal proceedings under Sec. 494 of the I.P.C. is no evidence of marriage, the Apex Court in KANWAL RAM AND OTHERS V. THE HIMACHAL PRADESH ADMINISTRATION : 1966CriLJ472 has held thus:
'Secondly, it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved.'
23. It has been held by the Apex Court in PRIYA BALA GHOSH V. SURESH CHANDRA GHOSH AIR 1971 SCC 1153 as follows:
'17. In Kanwal Ram v. The Himachal Pradesh Admn. : 1966CriLJ472 this Court again reiterated the principles laid down in the earlier decision referred to above that in a prosecution for bigamy the second marriage has to be proved as a fact and it must also be proved that the necessary ceremonies had been performed. Another proposition laid down by this decision, which answers the second contention of the learned counsel for the appellant, is that admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery. On the evidence it was held in the said decision, that the witnesses have not proved, that the essential ceremonies had been performed.'
24. From the above decisions, it would be abundantly clear that even if an accused facing a charge for bigamous marriage under Sec. 494 of I.P.C. makes an admission before the Court, he could not be found guilty in view of the admission made by him; but, before finding him guilty, it would require the necessary pleading and the proof as to the bigamous marriage. At this juncture, it has to be pointed out that the election petitioner has made an averment stating that the returned candidate is liable for prosecution under Sec. 494 of I.P.C. in view of the admission made by him in an affidavit filed along with the nomination papers before the Returning Officer. Except by stating that the returned candidate has admitted that he has got two spouses, the election petitioner has not made any allegations which are necessary, requisite, crucial, and material facts as to the alleged bigamous marriage of the returned candidate. In view of all the above, the Court has to necessarily state that the contention of the election petitioner's side that the declared candidate has violated the law for the time being in force, and he is to be termed as one statutorily disqualified has got to be discountenanced.
25. It is mandatory under Sec. 83(1)(a) of the Representation of the People Act 1951, that the election petition should contain a concise statement of the material facts on which the election petitioner relies. Needless to say that the material facts are those facts which if established, would give the election petitioner the relief asked for. The test to be applied is whether the Court can give 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. Material facts are those facts which would form a basis for the allegations made in the petition and would constitute a cause of action as found in Civil Procedure Code. The Apex Court in the decision reported in : AIR2001SC3689 (HARI SHANKER JAIN V. SONIA GANDHI) has discussed about the mandatory nature of Sec. 83(1)(a) of the Act as to the material facts and cause of action in an election petition, as follows:
'23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, 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. The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party 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. (See Samant N.Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead 'material facts' is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.' If this test as enunciated by the Supreme Court in the above decision, is applied to the present allegations, then it can be well stated that the election petition not only lacks in material facts, but also does not disclose a cause of action.
26. As stated supra, the election petitioner has sought to avoid the election of the declared candidate under Sec. 100(1)(d)(i) and (iv) of the Representation of the People Act. Sec. 100(1)(d)(i) and (iv) read:
'100.Grounds for declaring election to be void
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion -
(a) ...
(b) ...
(c) ...
(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 of any nomination, or
(ii) ...
(iii) ...
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.' In order to find out whether the election petitioner has disclosed any cause of action or a triable issue, the averments in the election petition have to be viewed with reference to Sec. 100(1)(d)(i) and (iv) of the said Act. Under the Representation of the People Act, Sec. 100 is the only provision which speaks of the grounds for setting aside the election.
27. The Apex Court had an occasion to consider the jurisdiction of the High Court and the scope of the provisions of Sec. 100 of the Representation of the People Act in HARI SHANKER JAIN V. SONIA GANDHI : AIR2001SC3689 and held thus:
'8. It is clear from a conspectus of the abovesaid provisions that jurisdiction to try an election petition has been conferred on the High Court. The grounds for declaring an election to be void must conform to the requirement of Section 100 and the operative part of the order of the High Court must conform to the requirement of Sections 98 and 99 of RPA, 1951. The vires of any law may be put in issue by either party to an election petition before the High Court and the High Court can adjudicate upon such an issue if it becomes necessary to do so for the purpose of declaring an election to be void under Section 100 and for the purpose of making an order in conformity with Sections 98 and 99 of RPA, 1951. The only restriction on the power of the High Court, as spelled out by clause (a) of Article 329 of the Constitution, is that the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, cannot be called in question and hence cannot be so adjudged. A Judge of the High Court can, therefore, while hearing an election petition, adjudicate upon the validity of any statutory provision subject to two limitations: (1) that it must be necessary to go into that question for the purpose of trying an election petition on any one or more of the grounds enumerated in Section 100 and for the purpose of granting any one or more of the reliefs under Sections 98 and 99 of the Act, and ( ii) a specific case for going into the validity or vires of any law is made out on the pleadings raised in the election petition.'
28. The very reading of the decision of the Supreme Court stated above would make it clear that the grounds for declaring the election void must strictly conform to the grounds mentioned in Sec. 100, and the allegations of disqualification found in the election petition have to be interpreted very strictly. The election petitioner has sought the relief of declaration that the election of the returned candidate the first respondent therein, is void on the grounds of (1) improper acceptance of the nomination and (2) non-compliance with the provisions of the Constitution or of the Representation of the People Act or any Rules or Orders made under that Act. It is not in dispute that after the filing of the nomination papers by the returned candidate, the election petitioner made a representation on 24.4.2004 requesting the Returning Officer to reject the nomination of the first respondent/elected candidate on the ground of bigamy. After giving sufficient opportunity of being heard to both sides, the objection raised by the election petitioner, was rejected by the Returning Officer at the time of scrutiny on the ground that when there was no conviction for bigamy by the Criminal Court, there was no bar for the first respondent returned candidate in contesting the election. The contention of the election petitioner's side that he was to adduce proof if there was a denial; but, in the instant case, in view of the admission by the first respondent returned candidate, it need not be statutorily proved cannot be countenanced. The reason adduced by the Returning Officer for rejecting the objection raised by the election petitioner on the ground of bigamy was a sound one, since mere admission made by the candidate in the affidavit filed along with the nomination papers stating that he has two spouses, by itself would not amount to criminal offence, and he never stood charged, tried or punished for bigamy.
29. The election petitioner has also sought to avoid the election of the returned candidate on the ground stated in Sec. 100(1)(d)(iv) of the Representation of the People Act. In order to avoid the election under the said provision by declaring it as void, the election petitioner must make requisite and specific allegations as to the noncompliance with the provisions of the Constitution or the provisions of the Representation of the People Act or of any Rules or Orders made under that Act. Needless to say that under Sec. 100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerns the returned candidate, has been materially affected by the non-compliance with the provisions of the Act or of the Rules. A careful reading of the entire election petition would reveal that there is absolutely no averment in the election petition that the returned candidate has not complied with the provisions of the Constitution or has committed any violation of the provisions of the Representation of the People Act or any Rules or Orders made under that Act. In the absence of any material facts in the election petition, it can be well stated that the election petitioner has not strictly complied with the mandatory provisions under Sec. 83(1)(a) of the Representation of the People Act, nor has he made any necessary averments or materials disclosing a cause of action and as such, any triable issue. Mere allegation that the returned candidate has admitted in the statement of assets that he has got two spouses cannot be considered as necessary and requisite facts supporting his case or it would make a basis for the allegations made in the election petition or it would constitute a cause of action as understood in the Civil Procedure Code. In short, if the allegations are viewed with reference to Sec. 100(1)(d)(i) or 100(1)(d)(iv) of the Representation of the People Act, then the same do not disclose a cause of action or a triable issue. Hence, on those grounds, this Court is of the view that the election petition has got to be necessarily rejected.
30. Insofar far as the contention of the petitioner that the election petition was not properly verified, and supporting affidavit was not filed, this Court is of the opinion that on that ground, the election petition cannot be rejected. So far as the other ground raised by the petitioner herein that an affidavit in support of his pleadings by the person to verify the pleadings in the election petition as required under Order VI Rule 15(4) of C.P.C., was not furnished Is concerned, the same cannot also be a reason to reject the election petition for the reason that if such an affidavit was not filed by the election petitioner, he can be directed by the Court to file such an affidavit before the commencement of the trial, and hence, the same cannot also be considered as a ground to reject the election petition in the instant case. The above point is answered accordingly.
31. For the foregoing reasons, this Court is of the firm opinion that the election petition is liable to be rejected. Therefore, this original application is allowed.