JITU PATNAIKversusSANATAN MOHAKUD & ORS.

                        [2012] 2 S.C.R. 258


A                          JITU PATNAIK
                                  v.
                   SANATAN MOHAKUD & ORS.
                  (Civil Appeal No. 2689 of 2012)

                          MARCH 2, 2012
B
            [R.M. LODHA AND H. L. GOKHALE, JJ.]

        REPRESENTATION OF THE PEOPLE ACT, 1951:

c       s.52(as inserted by Amendment Act 21 of 1996) read with
  ss.38, 83 and 100(1)(d) - State Legislative Assembly Elections
  - Death of an independent contesting candidate after the date
  of withdrawal of nomination and publication of list of contesting
  candidates, but before the date of polling - Election petition
0 challenging the election of returned candidate - Held: s.52
  enjoins that if a candidate set up by'recognized political party
  dies before the poll, the poll must. be adjourned; it does not
  provide any such obligation on the returning officer if a
  candidate of a registered political party other than recognized
E political party or an independent candidate dies after the list
  of the contesting candidates as defined in s. 38 is published
  - The expression "contesting candidates" in paragraph 8.1,•
  Chapter XII of the Handbook has to be given the same
  meaning as the contesting candidates defined in s. 38 of the
  Act - In this view of the matter, there was no duty imposed on
F the returning officer to mask the name of the independent
  candidate who died after publication of list of validly
  nominated candidates being a contesting candidate as
  defined in s. 38 - Moreover, the instructions in the Handbook
  are only guidelines - These instructions have no statutory force
G - There being no non-compliance with the provisions of the
  Constitution or the 1951 Act or any rules framed or orders
  made under 1951 Act by the returning officer insofar as death
  of independent candidate was concerned, the averments
  made in paragraph l(A) of the election petition do not furnish
H                                258
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                    259


any cause of action for declaring the election of the returned       A
candidate to be void uls 100(1)(d)(iv) - High Court seriously
erred in holding otherwise and ordering trial of the election
petition on the pleadings set out in paragraph 7(A).

      s.83(1)(a) - Election petition to contain concise statement
                                                                     8
of 'material facts' - Averment in para 7(0) of the election
petition alleging suppression of votes - Held: It is imperative
for an election petition to contain a concise statement of the
material facts on which the election petitioner relies - All basic
and primary facts which must be proved at the trial by a party
to establish the existence of cause of action or defence are         C
material facts - The bare a/legations are never treated as
material facts - The material facts are such facts which afford
a basis for the allegations made in the election petition -
Omission of even a single material fact leads to an incomplete
cause of action and statement of claim becomes bad - The             D
averments made in paragraph 7(0) do not set out all the
material facts and do not afford an adequate basis for the
a/legations made therein - The allegations in paragraph 7(0)
do not constitute cause of action for declaring election of the
returned candidate to be void -High Court has already struck         E
out paragraphs 7(8), 7(C), 7(E), 7(F) and 7(G) of the election
petition - The remaining two paragraphs 7(A) and 7(0) do not
disclose any cause of action and are liable to be struck out -
After striking out paragraphs 7(A) and 7(0), nothing remains
in the election petition for trial and, therefore, the election      F
petition is liable to be rejected in its entirety - Code of Civil
Procedure, 1908 - 0. 6, r. 2 - Conduct of Election Rules, 1961
- r.93.

     An independent candidate whose candidature had                  G
survived the scrutiny of nominations for the 14th
Assembly Election to Orissa State Legislative Assembly,
died on 13.4.2009, i.e. after the date of withdrawal of
nominations i.e. 8.4.2009, but before the date of polling
i.e. 23.4.2009. His name continued to appear in the list of          H
    260       SUPREME COURT REPORTS           [2012] 2 S.C.R.

A contesting candidates and was included in Electronic
  Voting Machine (EVM). The polling was held on 23.4.2009
  and the deceased got 550 votes. Respondent no. 1 lost
  the election to the appellant. He filed an election petition
  challenging the election of the appellant. The appellant
B filed, an application with a prayer to strike out the
  pleadings made in paragraphs 7(A) to 7(G) of the election
  petition. The High Court struck out paragraphs 7(8), 7(C)
  and 7(E) to 7(G) and permitted trial of the election petition
  on the pleadings set out in paragraphs 7(A) and 7(0). The
c returned candidate filed the appeal contending that
  paragraphs 7(A) and 7(0) of the election petition did not
  set out the material facts to constitute cause of action u/
  ss 100(1)(d)(iii) and (iv) of the Representation of the
  People Act, 1951.

D      The questions for consideration before the Court
  were: (i) "if an independent contesting candidate dies .
  after the publication of list of contesting candidates, does
  the electoral law as contained in 1951 Act or the Rules
  framed thereunder cast any obligation upon the
E returning officer not to display the name of such
  deceased candidate in the EVM"; and (ii) "whether the
  pleadings in paragraph 7(0) set out the material facts to
  constitute cause of action u/s 100(1)(d)(iii) and/or (iv) of
  the 1951 Act.
F
          Allowing the appeal, the Court

       HELD: 1.1 This Court has stated time and again that
  right to contest election or to questfon the election by
  means of the election petition is neither common law nor
G fundamental right. Instead, it is a statutory right regulated
  by the statutory provisions contained in the
  Representation of the People Act, 1951. The Act is
  complete and self-contained code within which the rights
  claimed in relation to an election or election dispute must
H be found. [para 19) [275-H; 276-A-B]
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                 261


    N.P. Ponnuswami v. The Returning Officer, Namakkal           A
Constituency, Namakka, Salem Dist. and Others 1952 SCR
218 = 1952 AIR 64 ; , Jagan Nath v. Jaswant Singh and
Others 1954 SCR 892 =1954 AIR 210; Jyoti Basu & others
v. Debi Ghosaf and Others 1982 (3) SCR 318 = 1982 (1) SCC
691, Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi 1987          B
SCR 369 = 1987 Suppl. SCC 93; and Chandra Kishore Jha
v. Mahavir Prasad and Others 1999 (2 ) Suppl. SCR 754 =
1999 (8 ) sec 266 - referred to.

     1.2 Once nomination has been filed by a candidate
and on scrutiny his candidature is found proper and              C
before the expiry of the period of the withdrawal, he has
not withdrawn his candidature and his name is included
in the list of validly nominated candidates prepared u/s
38 of the 1951 Act and r. 11 of the Conduct of Election
Rules, 1961, if death of a contesting candidate as defined       D
in s.38 takes place, the consequences following the
death of such contesting candidate have to be found
from electoral law contained in 1951 Act or the rules
framed thereunder. [para 20] [276-D-E]
                                                                 E
     1.3 Section 52, after its substitution by Act 21 of 1996,
takes cognizance of a death of a candidate of the
recognized political party before poll and not the other
two categories of the candidates classified in s. 38,
namely, (one) candidates of registered political parties         F
other than the candidates of recognized political parties
and (two) other candidates (which include independent
candidates). Section 52 enjoins that if a candidate set up
by recognized political party dies before the poll, the poll
must be adjourned; it does not provide any obligation on         G
the returning officer if a candidate of a registered political
party other than recognized political party or an
independent candidate dies after the list of the contesting
candidates as defined in s. 38 is published. [para 20 and
23] [276-F-H; 280-8-C]
                                                                 H
    262       SUPREME COURT REPORTS           [2012] 2 S.C.R.


A       1.4 Chapter XII of the Handbook deals with
   preparation for the poll, particularly commissioning of
   EVMs. A careful reading of paragraph 8.1 of the
   Handbook relied upon on behalf of respondent no. 1
   would show that the number of candidates' buttons
B which should be visible should be equal to the number
   of contesting candidates and the remaining buttons must
   be masked. The expression "contesting candidates" in
   paragraph 8.1 has to be given the same meaning as the
   contesting candidates defined in s. 38 of 1951 Act. No
C other meaning to the expression "contesting candidates"
   can be given. The candidates who survive the date of the
   withdrawal of candidatures are described in s.38 as
   'contesting candidates'. Thus, the number of,candidates'
   buttons which should be visible on EVM should be equal
   to the number of candidates as published in the list of
0
   validly nominated candidates who have not withdrawn
   the candidature within the period prescribed and whose
   nominations are included in the list published u/s 38. In
   this view of the matter, there was no duty imposed on the
   returning officer to mask the name of the candidate at SI.
E no. 9, who was an independent candidate and who died
   on 13.4.2009 after publication of list of validly nominated
   candidates being a contesting candidate as defined in s.
   38. Moreover, the. instructions in the Handbook are only
  ·guidelines. These instructions have no statutory force.
F [para 16 and 25) [282-A-E]

          Ramesh Rout vs. Rabindra Nath Rout 2012 (1) SCC 762
    - relied on
      ·· 1.5 There being no non-compliance with the
G provisions of the Constitution or the 1951 Act or any rules
  framed or orders made under 1951 Act by the returning
  officer insofar as death of an independent candidate was
  concerned, the averments made in paragraph 7(A) of the
  election petition do not furnish any cause of action for
H
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                  263


declaring the election of the returned candidate to be void        A
u/s 100(1 )(d)(iv). The High Court seriously erred in holding
otherwise and ordering trial of the election petition on the
pleadings set out in paragraph 7(A). [para 26) [283-A-B]

     2.1 As regards the pleadings in paragraph 7(0) of the
                                                                   8
election petition, it is significant to note that the first part
of 0. 6, r. 2 CPC is similar to clause 1(a) of s. 83 of the
1951 Act. It is imperative for an election petition to contain
a concise statement of the material facts on which the
election petitioner relies. All basic and primary facts
which must be proved at the trial by a party to establish          C
the existence of cause of action or defence are material
facts. The bare allegations are never treated as material
facts. The material facts are such facts which afford a
basis for the allegations made in the election petition.
[para 32) (284-H; 285-A-C]                                         D

     Virender Nath Gautam v. Satpal Singh and others 2006
(10 ) Suppl. SCR 413 = 2007 (3 ) SCC 617 -. relied on

     Philipps v. Philipps and Others (1878) 4 Q.B.D. 127 and
the subsequent decision in Bruce v. Odhams Press Limited           E
(1936) 1 K.B. 697 - referred to

     2.2 As regards the discrepancy in the number of
voters in the register of voters maintained in Form-17A
and the voters shown in Form 17C, it is significant to note        F
that the register of voters in Form-17A is not available for
inspection. Rule 93 of the 1961 Rules provides for the
production and inspection of election papers. Clause (dd)
of r. 93(1) makes a provision that the packets containing
register of voters in Form 17A, while in the custody of the        G
district election officer or the returning officer, as the case
may be, shall not be opened and their contents shall not
be inspected by, or produced before, any person or
authority except under the order of a competent court.
[para 36] [286-H; 287 -A]                                          H
    264    SUPREME COURT REPORTS            [2012] 2 S.C.R.


A      2.3 There is no averment that the election petitioner
  or any of his polling agents had perused the register of
  voters maintained in Form 17A. The basis of the
  knowledge that the register of voters maintained in Form
  17A records that 1091 voters came to vote is not disclosed
8 at all. Moreover, there is no pleading that 1091 voters who
  came to vote at Booth No. 179 in fact voted. [para 37]
  [287-8-CJ

       2.4 The averment that in Form-17C, certified copy, "it
  has been deliberately shown as 772 making a deliberate
C suppression of 319 votes" hardly improves the pleading
  in the election petition. There is no averment that the
  election petitioner or his agents challenged part II of
  Form-17C before the authorities. At least, there are no
  facts pleaded concerning that. There is no pleading that
D there was any challenge by the election petitioner or his
  agents in respect of the counting figure in Form-20. The
  only pleading is that the illegality has been deliberately
  committed by the counting personnel while recording the
  counting figure in Form-20 with respect to Booth No. 179.
E There is, thus, no disclosure of material facts in respect
  of the challenge to the correctness of Form-20 and Form-
  17C. [para 38] [287-E-G]

       2.5 The pleading of material facts with regard to
  suppression of 319 votes in paragraph 7(0) is also
F incomplete as it has not been disclosed who suppressed
  319 votes; who was the counting agent present on behalf
  of the election petitioner at the time of counting; how 319
  votes were suppressed and why recounting was not
  demanded. Moreover, there is no express pleading as to
G how the result of the election has been materially affected
  by less counting of 319 votes. Omission of even a single
  material fact leads to an incomplete cause of action and
  statement of claim becomes bad. [para 39-40) [287-H;
  288-A-C]
H
      JITU PATNAIK v. SANATAN MOHAKUD & ORS.           265

    Samant N. Balkrishna and Another v. George Fernandez      A
and Others 1969 (3) SCR 603 =1969 ( 3 ) SCC 238 - relied
on.

    2.6 The other part of paragraph 7(0) relating to 462
votes is based on the preceding paragraph 7(C) which          8
has been already struck out by the High Court. Therefore,
the pleadings in paragraph 7(D) in respect of 462 votes
do not survive as it is. Thus, the averments made in
paragraph 7(0) do not set out all the material facts and
do not afford an adequate basis for the allegations made      C
therein. The allegations in paragraph 7(0) do not
constitute cause of action for declaring election of the
returned candidate to be void. [para 41-42] [288-0-E]

     3. The High Court has already struck out paragraphs
7(8), 7(C), 7(E), 7(F) and 7(G). The remaining two            D
paragraphs 7(A) and 7(0) do not disclose any cause of
action and are liable to be struck out. After striking out
paragraphs 7(A) and 7(0), nothing remains in the election
petition for trial and, therefore, the election petition is
liable to be rejected in its entirety. [para 43] [288-F-G]    E

      Madan Gopal vs. Nek Ram Sharma 25 ELR 61 - cited.

                    Case Law Reference:
  25 ELR 61                    cited             para 18      F
  1952 SCR 218                 referred to       Para 19
  1954 SCR 892                 referred to       Para 19
  1982 (3) SCR 318             referred to       Para 19
                                                              G
  1987 SCR 369 '               referred to       Para 19
  1999 (2 ) Suppl. SCR 754     referred to       Para 19
  2012 (1 l sec 762             relied on        para 25
  2006 (10 ) Suppl. SCR 413 relied on            para 32      H
    266       SUPREME COURT REPORTS                [2012) 2 S.C.R.


A     (1878) 4 Q.B.D. 127            referred to         para 33

      (1936) 1 K.B. 697              referred to         para 33

      1969 (3) SCR 603               relied on           para 40

B       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2689 of 2012.

         From the Judgment & Order dated 21.06.2011 of the High
    Court of Orissa at Cuttack in Misc. Case No. 50 of 2009 in
    Election Petition No. 2 of 2009.
c
        C.A. Sundram, Rohini Musa, Zafar lnayat, Yogesh
    Kotemath, Mahesh Agarwal, Rishi Agrawala, E.G. Agrawala,
    Shakti Prasad Panda, Satyajit Mohanti, Gaurav Goel for the
    Appellant.
D
        Mukul Rohatgi, Bidhyadhar Mishra, S.N. Bhat, Sanjeeb
    Panigrahi, Pusparaj Bharadwaj, Subhash Acharya, Shyam
    Mohan, Ninad Laud for the Respondents.

          The Judgment of the Court was delivered by
E
          R.M. LODHA, J. 1. Leave granted.

          2. The two paragraphs - 7(A) and 7(0) - of the election
    petition occupied significant time of this Court on 3 days -
    February 7, 2012, February 9, 2012 and February 14, 2012 -
F   to determine the correctness of the order dated June 21, 2011
    passed by the Orissa High Court whereby the High Court
    directed that the election petition shall proceed in respect of
    the pleadings contained in these two paragraphs.

G        3. On the announcement of the 14th Assembly Election to
    the Orissa State Legislative Assembly, insofar as it related to
    25-Champua Assembly Constituency, the following sch·edule
    of election was notified:

H
     JITU PATNAIK v. SANATAN MOHAKUD & ORS.                   267
                  [R.M. LODHA, J.]

                SCHEDULE OF ELECTION                                A

28.3.2009        PERIOD PRESCRIBED FOR FILLING
To               NOMINATION.
4.4.2009
6.4.2009         DATE FIXED FOR SCRUTINY OF                         B
                 NOMINATION
8.4.2009         DATE OF WITHDRAWAL
23.4.2009        DATE OF POLLING
16.5.2009        DATE OF COUNTING/ DECLARATION OF
                 RESULT.                                            c
28.5.2009        DATE BEFORE WHICH THE ELECTION
                 SHALL BE COMPLETED.

4. As per the above schedule, on expiry of the time of
withdrawal on April 8, 2009, the returning officer prepared and     D
published the following list of contesting candidates.

SI. Name of the                Name of the       Election symb.ol
No. contesting candidate       political party
1. Chitaranjan Nayek           B.S.P.            Ele11>hant         E
2. Bidyadhar Mohanta           C.P.I.            Ears of Corn
                                                 and Sickle
3.    Muralimanohar Sharma B.J.P.                Lotus
4.    Laxman Kumar Sethi   J.M.M.                Bow & Arrow
                                                                    F
5.    Sanatan Mahakud      l.N.C.                Hand
6.    Keshab Mohanta       Samrudha              Nagara
                           Orissa
7. Khitish Chandra Mohanta Orissa Mukti          Violin
                           Morch a                                  G
8. Jadumani Patra          Samajbadi             Saw
                           Party
9. Akhila Kumar Mohanta    Independent           Television
10. Akhileswar Giri        Independent           Battery & Torch
11. Abhimanyu Mohanta      Independent           Coconut            H
    268      SUPREME COURT REPORTS                [2012] 2 S.C.R.


A   12. Arabinda Behera             Independent    Ripe Plantation
    13. Ashok Mohanta               Independent    Road Roller
    14. Kusha Apot                  Independent    Scissors
    15. Jitu Patnaik                Independent    Saucer & Plate
B   16. Deepak Moharana             Independent    Camera
    17. Puma Chandra Mohanta        Independent    Saloon
    18. Prabhupada Mishra           Independent    Almirah
    19. Buta Singh                  Independent    Ceiling Fan
  20. Bhabani Mohanta               Independent    Candle
c 21. Manoj Kumar Mohanta           Independent     Rail Engine
    22. Sanjita Nayek               Independent     Batsman

       5. It so happened that one of the contesting candidates at
  SI. No. 9, namely, Akhila Kumar Mohanta, who was an
0
  independent candidate, died on April 13, 2009. His death was
  allegedly informed to the returning officer. However, his name
  continued to appear in the list of contesting candidates and was
  included in Electronic Voting Machine (EVM). The polling was
  held on April 23, 2009 in all 218 booths of the 25-Champua
E Assembly Constituency through EVM. The total votes recorded
  in the EVMs of 218 booths were 1,25,342 and postal ballots
  were 10. The appellant, Jitu Patnaik who contested as an in
  dependent candidate secured 27700 votes. The first
  respondent, Sanatan Mohakud, a candidate of Indian National
F Congress, secured 27555 votes. The deceased Akhila Kumar
  Mohanta got 550 votes. Since the appellant secured the
  highest number of votes, he was declared elected from 25-
  Champua Assembly Constituency.

G       6. The first respondent (hereinafter referred to as 'election
  petitioner') challenged the election of the appellant (hereinafter
  referred to as 'returned candidate') by filing an election petition
  before the Orissa High Court. In paragraphs 7(A) to 7(G), the
  election petitioner set out the case for declaring the election of
  the returned candidate to be void and declare the election
H petitioner duly elected to the Orissa State Legislative Assembly
    JITU PATNAIK v. SANATAN MOHAKUD & ORS.                    269
                 [R.M. LODHA, J.]

the returned candidate to be void and declare the election            A'
petitioner duly elected to the Orissa State Legislative Assembly
from 25-Champua Assembly Constituency.
     7. On service of the notice of the election petition, the
returned candidate appeared and filed his written statement/          B
reply traversing the pleadings set out in the election petition.
The returned candidate also made an application under Order
VI Rule 16 read with Section 151 and Order VII Rule 11 of the
Code of Civil Procedure, 1908 (for short, 'CPC')' read with
Section 86( 1) of the Representation of the People Act, 1951
(for short, '1951 Act') with prayer to strike out/reject the          C
pleadings made in paragraphs 7(A), 7(B), 7(C), 7(0), 7(E), 7(F)
and 7(G) of the election petition and reject the election petition.
      8: The High Court considered the above application made
by the returned candidate and, after hearing the learned counsel      o
for the election petitioner and the returned candidate, struck out
paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G) of the election
petition by invoking its jurisdiction under Order VI, Rule 16(c)
of CPC. However, the High Court ordered that the election
petition shall proceed in respect of the remaining pleadings. In      E
other words, the High Court permitted trial of the election
petition on the pleadings set out in paragraphs 7(A) and 7(0).
     9. The returned candidate is aggrieved by the above order
to the extent trial of the election petition on the pleadings set
out in paragraphs 7(A) and 7(0) has been ordered to be                F
continued. According to the returned candidate, these two
paragraphs do not set out the material facts to constitute cause
of action under Section 100 (1)(d)(iii) and/or (iv) of the 1951
Act.
    10. It may be stated immediately that the election petitioner     G
has not chall~nged the order of the High Court striking out
pleadings in paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G).
    11. We have heard Mr. C.A. Sundaram, learned senior
counsel for the appellant - returned candidate and Mr. Mukul          H
    270        SUPREME COURT REPORTS                [2012] 2 S.C.R.


A Rohatgi, learned senior counsel for respondent - 1 - the
  election petitioner.

         12. We shall first take up the pleadings set out in paragraph
    7(A) of the election petition which reads as follows :
B         "7(A) That Akhila Kumar Mohanta, who had filed
          nomination as an independent candidate and was
          assigned symbol Television died on 13.04.2009. His death
          was duly notified by the Returning Officer. In view of his
          death his name/symbol should not have been displayed in
c         the E.V.M. on the date of polling.

                  Both AKhila Kumar Mohanta as well as the Election
          petitioner were sharing a common ideology. Both were
          members of Indian National Congress. But since the
D         Election petitioner was having more support base amongst
          the rank and file of the party he was nominated by the
          l.N.C. as a party nominee to contest the Election and Akhila
          Kumar Mohanta filed his nomination as an independent
          candidate. The Voters who recorded their vote in the EVM
          on the date of Polling, i.e., 23.04.09, in favour of Akhila
E
          Kumar Mohanta were basically supporter of Indian N~tional
          Congress. In the event Akhila Kumar Mohanta would have
          withdrawn from contest or otherwise his name and symbol
          would not have displayed on the E.V.M. on account of his
          death, then the voters who have recorded their votes in his
F         favour would have recorded the same in favour of the
          election Petitioner in view of their party affiliation. As
          appears from the recording in Form-20, 550 (five hundred
          fifty) votes have been recorded in favour of the deceased
          contesting candidate Akhila Kumar Mohanta. Had his
G         name been not shown/displayed on the EVM, all these 550
          (Five hundred fifty) votes would have been recorded in
          favour of the Election petitioner. On account of the above
          wrong committed by the Returning Officer the prospect of
          wining of the Election petitioner has been adversely
H         affected and the result of Election has been materially
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                     271
                [R.M. LODHA, J.]
     affected."                                                       A

     13. The crux of the above averments is that one of the
independent candidates Akhila Kumar Mohanta had died on
April 13, 2009 after the expiry of withdrawal date; his death was
duly notified to the returning officer but despite that his name
                                                                      8
was displayed on the EVM on the date of the polling (although
he was already dead) and had his name not been· shown/
displayed on the EVM, all the 550 votes polled in his favour
would have been voted in favour of the election petitioner as
the deceased candidate and the election petitioner shared the         C
common ideology and both were members of the Indian
National Congress and on account of wrong committed by the
returning officer, the prospect of the election petitioner has been
adversely affected. ln light o.f the above pleadings, the question
that falls for determination is: if an independent contesting
candidate dies after the publication of list of contesting            D
candidates, does the electoral law as contained in 1951 Act
or the Rules framed thereunder cast any obligation upon the
returning officer not to display the name of such deceased
candidate in the EVM.
                                                                      E
     14. In order to answer the above question, it is appropriate
to survey the scheme of the 1951 Act in regard to the conduct
of elections. Part V, Chapter l of the 1951 Act is relevant in this
regard. Section 30 requires the Election Commission, as soon
as the notification calling upon a constituency to elect a            F
member or members is issued, to appoint (a) the last date for
making nominations, (b) the date for the scrutiny of
nominations, (c) the last date for the withdrawal of candidatures,
(d) the date or dates on which a poll shall, if necessary, be
taken and (e) the date before which the election is to be             G
completed. Section 31 requires the returning officer, on issue
of the notification under Section 30, to give public notice of the
intended election inviting nominations of candidates for such
election. Sections 32 and 33, inter alia, provide for nomination
of candidates for election, presentation of nomination paper          H
    272       SUPREME COURT REPORTS                 [2012] 2 S.C.R.

A and requirements for a valid nomination. Under the scheme of
  these two sections, a candidate for election has to be validly
  nominated. As per Section 36, after the nomination papers are
  received, on the date fixed for the scrutiny, returning officer is
  to hold scrutiny of nominations. Immediately after all the
  nomination papers have been scrutinized and decisions
8
  accepting or rejecting the same have been recorded, the
  returning officer is to prepare a list of validly nominated
  candidates and affix it on his notice board. Section 37 enables
  any of the validly nominated candidates to withdraw his
  candidature on or before the last date for the withdrawal of
C candidature.

       , 15. Section 38 makes the provision for publication of list·
    of contesting candidates. It reads as follows :

D         "S. 38. - Publication of list of contesting candidates.-(1)
          Immediately after the expiry of the period within. which
          candidatures may be withdrawn under sub- section (1) of
          section 37, the returning officer shall prepare and publfsh
          in such form and manner as may be prescribed a list of
          contesting candidates, that is to say, candidates who were
E
          included in the list of validly nominated candidates and who
          have not withdrawn their candidature within the said period .

      . (2) For the purpose of listing the names under sub- section
        (1 ), the candidates shall be classified as follows, namely:-
F
                 (i) candidates of recognised political parties;

                 (ii) candidates of registered political parties other
                 than those mention~d in clause (i);
G                (iii) other candidates.

          (3) The categories mentioned in sub- section (2) ~hall be
          arranged in the order specified therein and the names of
          candidates in each category shall be arranged in
H         alphabetical order and the addresses of the contesting
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                   273
                [R.M. LODHA, J.]
    candidates as given in the nomination papers together with      A
    such other particulars as may be prescribed."

     16. Section 38, thus, provides that immediately after the
expiry of the period within which candidatures may be
withdrawn, the returning officer is to prepare and publish a list   8
of contesting candidates, that is to say, candidates who were
included in the list of validly nominated candidates and who
have not withdrawn their candidature within the said period. The
candidates who survive the date of the withdrawal of
candidatures are described in Section 38 as 'contesting             C
candidates'. The list of contesting candidates prepared and
published by the returning officer contains the names of the
contesting candidates in alphabetical order and the addresses
of the contesting candidates as given in the nomination papers
together with such other particulars as may be prescribed.
                                                                    D
     17. Part V, Chapter Ill of the 1951 Act deals with the
general procedure at elections. Section 52, after amendment
in 1996, deals with the situation of a death of a candidate of a
recognized political party before poll. It reads as follows :
                                                                    E
     "S.-52. - Death of a candidate of a recognized political
     party before the poll.- (1) If a candidate set up by a
     recognised political party,-

      (a)   dies at any time after 11 A. M. on the last date for
            making nominations and his nomination is found          F
            valid on scrutiny under section 36; or

      (b)   whose nomination has been found valid on scrutiny
            under section 36 and who has not withdrawn his
            candidature under section 37, dies, and in either       G
            case, a report of his death is received at any time
            before the publication of the list of contesting
            candidates under section 38; or

      (c)   dies as a contesting candidate and a report of his
            death is received before the commencement of the        H
    274 ·    SUPREME COURT REPORTS                  (2012) 2 S.C.R.


A              poll, the returning officer shall, upon being satisfied
               about the fact of the death of the candidate, by
               order, announce an adjournment of the poll to a
               date to be notified later and report the fact to the
               Election Commission and also to the appropriate
B              authority:

             Provided that no order for adjourning a poll should
       be made in a case referred to in clause (a) except after
       the scrutiny of all the nominations including the nomination
       of the deceased candidate.
c
              (2) The Election Commission shall, on receipt of a
       report from the returning officer under sub- section (1), call
       upon the recognised political party, whose candidate has
       died; to nominate another candidate for the said poll within
D      seven days of issue of such notice to such recognised
       political party and the provisions of sections 30 to 37 shall,
       so far as may be, apply in relation to such nomination as
       they would apply to other nominations: Provided that n
        person who has given a notice of withdrawal of h
E      s candidature under sub- section (1) of section 37

      ' efore the adjournment of the poll shall be ineligible for being
        nominated as a candidate for the election after such
        adjournment.
F            (3) Where a list of contesting candidates had been
       published under section 38 before the adjournment of the
       poll under sub- section (1 ), the returning officer shall again
       prepare and publish a fresh list of contesting candidates
       under that section so as to include the name of the
G      candidate who has been validly nominated under sub-
       section (2).

       Explanation.- For the purposes of this section, sections
       33 and 38," recognised political party", means a political
       party recognised by the Election Commission under the
H
     JITU PATNAIK v. SANATAN MOHAKUD & ORS.                 275
                  [R.M. LODHA, J.]
      Election Symbols (Reservation and Allotment) Order,           A
      1968."

      18. There is no provision other than Section 52 in the 1951
Act which provides for the consequences following the death
of a candidate after the publication of list of contesting
candidates under Section 38 and before poll. The Conduct of         8
Elections Rules, 1961 (for short, '1961 Rules') also do not
provide for such contingency. Mr. Mukul Rohatgi, learned senior
counsel for the election petitioner, however, heavily relied upon
certain instructions contained in the Handbook for Returning
Officers (at elections where electronic voting machines are         C
used) issued by the Election Commission of India in 2009 (for
short, 'the Handbook'). He referred to paragraphs 4.14 and 4.15
which deal with commissioning of machines, paragraph 6.1
that deals with preparation of ballot unit and paragraphs 8.1
and 8.2 which provide for masking of candidates' buttons which      D
are not to be used. Mr. Mukul Rohatgi also referred to a
decision of Allahabad High Court in Madan Gopa/ v. Nek Ram
Sharma 1 underlying philosophy of law in the case of death of
a contesting candidate before poll. Learned senior counsel
submitted that the law contemplates living person, and not a        E
dead person, to be a contesting candidate and, therefore, it
was obligatory on the part of the returning officer to erase or
mask the name of Akhila Kumar Mohanta-an independent
candidate-who died after the publication of the list of the
contesting candidates but before poll and whose death was           F
notified to the returning officer well in advance. He submitted
that the margin of difference of votes between the returned
candidate and the election petitioner was only 145 votes and
had 550 votes not been cast in favour of the deceased
candidate, the result of the election would have been otherwise.    G

    19. We are unable to accept the submission of Mr. Mukul
Rohatgi. In long line of cases beginning from 1952 this Court
has stated time and again that right to contest election or to
1.   25 ELR.                                                        H
    276        SUPREME COURT REPORTS                [2012] 2 S.C.R.


A question the election by means of the election petition is neither
  common law nor fundamental right. Instead, it is a statutory right
  regulated by the statutory provisions contained in the 1951 Act.
  The 1951 Act is complete and self-contained code within which
  the rights claimed in relation to an election or election dispute
8 must be found. It is not necessary to refer to all such decisions
  in this regard but reference to few of them, namely, N.P.
  Ponnuswami v. The Returning Officer, Namakkal
  Constituency, Namakkal, Sa/em Dist. and Others 2 , Jagan
  Nath v. Jaswant Singh and Others3 , Jyoti Basu & others v.
C Debi Ghosa/ and Others4, Dhartipakar Madan Lal Agarwal v.
  Rajiv Gandhi5 and Chandra Kishore Jha v. Mahavir Prasad
  and Others 6 shall suffice.

          20. There is no doubt that only living persons can offer
    themselves or be offered as candidates for membership of
D   Parliament or State Legislatures. However, once nomination
    has been filed by a candidate and on scrutiny his candidature
    is found proper and before the expiry of the period of the
    withdrawal, he has not withdrawn his candidature and his name
    is included in the list of validly nominated candidates prepared
E   under Section 38 of the 1951 Act and Rule 11 of the 1961
    Rules, if death of a contesting candidate as defined in Section
    38 takes place, the consequences following the death of such
    contesting candidate have to be found from electoral law
    contained in 1951 Act or the rules .framed thereunder. Section
F   52, after its substitution by Act 21 of 1996, takes cognizance
    of a death of a candidate of the recognized political party before
    poll and not the other two categories of the candidates
    classified in Section 38, namely (one) candidates of registered
    political parties other than the candidates of recognized political
G   parties and (two) other candidates (which includes independent
    2.   AIR 1952 SC 64.
    3.   AIR 1954 SC 210.
    4. · (1982) 1 sec 691.
    5.   1987 (supp) sec 93.
H 6. (1999) 8 sec 266.
    JITU PATNAIK v. SANATAN MOHAKUD & ORS.                   277
                 [R.M. LODHA, J.]

candidates). Section 52 in its original form in 1951 Act was as      A
follows:-

     "S.-52: Death of Candidate before poll. - If a candidate
      who has been duly nominated under this Act die.s after the
      date fixed for the scrutiny of nominations and a report of     8
      his death is received. by the Returning Officer before the
      commencement of the poll, the Returning Officer shall,
                                     /

      upon being satisfied of the fact of the death of the
      candidate, countermand the poll and report the fact to the
      Election Commission and also to the appropriate authority      C
      and all proceedings with reference to the election shall be
    . cpmmenced anew in all respects as if for a new election:

          Provided that no further nomination shall be
     necessary in the case of a candidate whose nomination
     was valid at the time of the countermanding of the poll :       D

            Provided further that no person who has under sub-
     section (1) of Section 37 given a notice of withdrawal of
     his candidature before th.e countermanding of the poll shall
     be ineligible for being nominated as a candidate for the
                                                                     E
     election after such counterm~nding".

    21. According to the original provision contained in Section
52, the consequence of the death of a candidate duly
_nominated after the scrutiny of nomination form was
countermand of the poll. However, this provision was substituted     F
by Act i of 1992. On substitution by Act 2 of 1992, Section 52
read as follows:

     "S. 52. Death of candidate before the poll. - If a candidate,
     set up by a recognised political party,-                        G
     (a) dies at any time after 11 A. M. on the last date for
     making nominations and his nomination is found valid on
     scrutiny under section 36; or

     (b)whose nomination .has been found valid on scrutiny           H
    278        SUPREME COURT REPORTS                [2012] 2 S.C.R.


A         under section 36 and who has not withdrawn his
          candidature under section 37, dies, and in either case, a
          report of his death is received at any time before the
          publication of the list of contesting candidates under
          section 38; or
B
          (c) dies as a contesting candidate and a report of his death
          is received before the commencement of the poll, the
          returning officer shall, upon being satisfied about the fact
          of the death of the candidate, by order, countermand the
          poll and report the fact to the Election Commission and
c         also to the appropriate authority and all proceedings with
          reference to the election shall be commenced anew in all
          respects as if for a new election:

                Provided that no order for countermanding a poll
D         should be made in a case referred to in clause (a) except
          after the scrutiny of all the nominations including the
          nomination of the deceased candidate.

               Provided further that no further nomination shall be
E         necessary in the case of a person who was a contesting
          candidate at the time of the countermanding of the poll:

                 Provided also that no person who has given a notice
          of withdrawal of his candidature under sub-section (1) of
          Section 37 before the countermanding of the poll shall be
F         ineligible for being nominated as a candidate for the
          election after such countermanding.

               Explanation. - For the purposes of this section,
          'recognised political party' means a political party
G         recognized by the Election Commission under the Election
          Symbols (Reservation and Allotment) Order, 1968".
       22. A significant departure was thus made from the original
  Section 52 concerning the death of a candidate before the poll.
  On death of a candidate set up by recognized political party,
H the consequence of countermand of the poll was provided in
    JITU PATNAIK v. SANATAN MOHAKUD & ORS.                      279
                 [R.M. LODHA, J.]
 three situations set out therein namely; (a) a candidate dies at       A
 any time after 11 a.m. on the last date for making nominations
 and his nomination is found valid on scrutiny under Section 36;
 or (b) a candidate whose nomination has been found valid on
 scrutiny under Section 36 and who has not withdrawn his
 candidature under Section 37, dies and (c) a candidate dies            s
 as contesting candidate before the commencement of the poll.
 Section 52 substituted by Act 2 of 1992 provided that in any of
 the above situations, the returning officer upon being satisfied
 about the death of the candidate shall countermand the poll.
        23. Section 52 which was brought in the 1951 Act by Act         C
  2 of 1992 was further substituted by Act 21 of 1996. The
  substituted Section 52 by Act 21 of 1996 has already been
  quoted above. The provision in 1951 Act now existing takes
  cognizance of the death of a candidate of recognized political
  party before poll only in three situations as were brought by Act     D
  2 of 1992. The significant change brought in law by 1996
  amendment is that the death of a candidate of a recognized
  political party before poll in three situations set out in clauses
  (a), (b) and (c) results in adjournment of the poll to a date to be
  notified later and not countermand of the poll. Proviso that          E
  follows sub-section (1) of Section 52 provides that no order for
  adjourning poll shall be made in a case if a candidate set up
· by a recognized political party dies at any time after 11.00 a.m.
  on the last date for making nomination and his nomination is
  found valid on scrutiny under Section 36 except after the scrutiny    F
  of all the nominations including the nomination of the deceased
  candidate. Sub-section (2) of Section 52 provides that the
  Election Commission shall on receipt of the report of the
  returning officer call upon the recognized political party to
  nominate another candidate in place of the deceased
  candidate for the said poll within seven days of issue of such        G
  notice. Sections 30 to 37 shall apply in relation to such
  nomination as far as applicable. According to sub-section (3)
  in a situation where list of contesting candidates had been
  published under Section 38 before the adjournment of the poll
  under sub-section (1 ), the returning officer shall again prepare     H
     280       SUPREME COURT REPORTS                   [2012) 2 S.C.R.

 A  and publish a fresh list of contesting candidates under that
    section so as to include the name of the candidate who has
    been validly nominated under sub-section (2). Section 52 takes
    care of the situation in case of death of ,a candidate of
    recognized political party before poll. However, the electoral law
• B as enacted in 1951 Act does not contemplate cognizance of
    the death of an independent candidate after publication of list
    of contesting candidates in Section 38. Section 52 enjoins that
    if a candidate set up by recognized political party dies before
    the· poll, the poll must be adjourned; it does not provide any
 c  obligation on the returning officer if a candidate of a registered
    political party 0th.er than recognized political party or an
    independent candidate dies after the list of the contesting
    candidates as defined in Section 38 is published.
        , · 24. We shall now consider the instructions provided in the
 o   Handbook, particularly paragraphs 4.14, 4.15, 6.1. 8.1 and 8.2
     of Chapter XII relied upon by Mr. Mukul Rohatgi, learned senior
     counsel for the election .petitioner. Chapter XII of the Handbook
     deals with preparation for the poll, particularly commissioning
    ·of EVMs. Paragraphs 4.14, 4.15, 6.1, 8.1 and 8.2 read as
. E follows:-
           "4.14. Before a voting machine is supplied to a Presiding
           Officer for use at a polling station, some preparations, as
           detailed below, are to be made in it at your level. These
         · preparations have to be made in the presence of the
 F         candidates and/or their agents.
            4.15 You should decide well in advance as to when the
            voting machines shall be prepared as aforesaid. This will
            depend on the numb~r of machines to be prepared, the
            time required for the movement of polling parties with the
 G          voting machines to the polling stations, the time likely to
            be taken in the printing of ballot papers for use on the ballot
         .. units and such other factors. In any case, all required
            EVMs must be duly prepared (i.e. commissioned) one
            week before the date of poll in the Constituencies.
 H                                                                  ..'
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                    281
                [R.M. LODHA. J.]
    6.1 Each ballot unit has to be prepared at the Returning         A
    Officer's level by: -
    (A) Inserting and fixing ballot paper in the space meant for
    the purpose;
    (B) Masking the candidate's buttons which are not required       B
    to be used, depending on the number of contesting
    candidates;
    (C) Setting the slide switch at the appropriate position, i.e.
    , 1, 2, 3 or 4, as the case may be, according to the number
    of such units which are to be used depending upon the            c
    number of contesting candidates and the sequence in
    which each unit is to be used, and
    (D) Sealing the ·unit (detailed step-by-step operations
    during sealing of EVM may·be seen at Annexure XXX).
    8.1 On the ballot unit, only those candidate's buttons should    D
    be visible which are to be used by voters. In other words,
    the number of candidate's buttons, which should be visible,
    will be equal to the number of contesting candidates. For
    example, if the number of candidates is nine, the first nine
    from the top (i.e., 1 to 9) candidates' buttons should be        E
    visible and the remaining seven buttons (i.e., 10 to 16)
    should be masked.
     8.2 The masking of the unwanted buttons can be done by
     moving the white masking tabs on to the candidate's
                                                                     F
     buttons, when the ballot unit is open like a book as
     explained in Para 7 above".
     25. We do not think paragraphs 4.14, 4.15 and 6.1 have
much relevance~ Paragraphs 4.14 and 4.15 basically provide
that requisite EVMs must be prepared one week before the poll        G
in the Constituencies. Each EVM has to be prepared at the
returning officer's level in the manner provided in paragraph 6.1.
The emphasis of the learned counsel was on paragraph 8.1
which states that on ballot unit only those candidates' buttons
should be visible which are to be used by voters and remaining
                                                                     H
    282        SUPREME COURT REPORTS                [2012] 2 S.C.R.


A buttons should be masked. A careful reading of paragraph 8.1
  would show that the number of candidates' buttons which should
  be visible should be equal· to the number of contesting
  candidates and the remaining buttons must be masked. The
  expression "contesting candidates" in paragraph 8 .1 has to be
B given the same meaning as the contesting candidates defined
  in Section 38 of 1951 Act. No other meaning to the expression
  "contesting candidates" can be given. In other words, the
  number of candidates' buttons which should be visible on EVM
  should be equal to the number of candidates as published in
c the list of validly nominated candidates who have not withdrawn
  the candidature within the period prescribed and whose
  nominations are included in the list published under Section 38.
  In this view of the matter, there was no duty imposed on the
  returning officer to mask the name of the candidate at SI. no.
  9, Akhila Kumar Mohanta, who was an independent candidate
0
  and who died on April 13, 2009 after publication of list of validly
  nominated candidates being a contesting candidate as defined
  in Section 38. Moreover, the instructions in the Handbook are
  only guidelines. These instructions have no statutory force. In a
E recent decision of this Court in Ramesh Rout vs. Rabindra
  Nath Rout7 one of us (R.M. Lodha, J.) speaking for the Bench
  observed as follows:
          "14 ...... The handbook, as it states, has been designed
          to give to the Returning Officers the information and
F         guidance which they may need in performance of their
        · functions; to acquaint them with up-to-date rules and
          procedures prescribed for the conduct of elections and to
          ensure that there is no scope for complaint of partiality on
          the part of any official involved in the election management.
          We shall refer to the relevant provisions of the handbook
G
          a little later. The handbook does not have statutory
          character and is in the nature of guidance to the Returning
          Officers".
          26. In view of the above legal position that the Handbook
H   7. · 2012 (1)   sec 762.
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                     283
                [R.M. LODHA. J.]
does not have statutory character and there being no non-            A
compliance with the provisions of the Constitution or the 1951
Act or any rules framed or orders made under 1951 Act by the
returning officer insofar as death of an independent candidate
was concerned, the averments made in paragraph 7(A) of the
election petition do not furnish any cause of action for declaring   B
the election of the returned candidate to be void under Section
100(1 )(d)(iv). The High Court seriously erred in holding
otherwise and ordering trial of the election petition on the
pleadings set out in paragraph 7(A).
      27. The next question remains to be seen is whether the        C
pleadings in paragraph 7(0) set out the material facts to
constitute cause of action under Section 100 (1 )(d)(iii) and/or
(iv) of 1951 Act.
     28. Paragraph 7(0) of the election petition read as under:
                                                                     D
     "7(0). The petitioner further gives a concise statement of
     material fact exposing a glaring instance of illegality
     deliberately committed by the counting personnels while
     recording the counting figure in Form-20 with respect to
     Booth No. 179, Urdu Madrasa Champua Alinagar Booth.
     The total number of voters as recorded in the Electoral Roll    E
     with respect to Booth No. 179 is 1109. Whereas in Form-
     17C, certified copy, deliberately this figure has been shown
     wrongly as 1091. On the date of polling on a plain perusal
     of Register of Voters maintained in Form-17 A, it will be
     abundantly clear that the total number of voters came to        F
     vote and signed 17-A Register is 1091 whereas in Form-
     17C certified copy, it has been deliberately shown as 772
     making a deliberate suppression of 319 votes. According
     to the information received by the Election petitioner from
     his counting agents in Booth Number 179, the Election           G
     petitioner has received 462 (Four hundred sixty two) votes.
     The said 462 votes are to be added to the total vote of
     the petitioner as stated in preceeding paragraph. Thus, the
     petitioner has received in total 27 41O+73+462+02 (postal
     Ballots)= 27,947 and the first respondent having received       H
    284         SUPREME COURT REPORTS              [2012] 2 S.C.R.


A         =27700, the Election petitioner has received 247 (Two
          hundred forty seven) more votes than the First respondent
          and is entitled to be declared elected as M.L.A. from "25-
          CHAMPUA" Assembly Constituency to Orissa State
          Legislative Assembly".
B         29. Mr. Mukul Rohatgi, learned senior counsel for the
  election petitioner submitted that the above pleadings are in
  two parts. The first part relates to suppression of 319 votes.
  This part begins with the start of paragraph 7(0) and ends with
  '. ...... suppression of 319 votes'. The second part relates to
C addition of 462 votes which is remaining part of paragraph 7(0).
  He would submit that all material facts concerning deliberate
  suppression of 319 votes have been pleaded in paragraph 7(0)
  and these facts constitute cause of action for declaring the
  election of the returned candidate to be void.
0     , 30. Order VI Rule 2 of CPC, to the extent it is relevant,
    reads as under :
         "O. VI Rule 2. Pleading to state material facts and· not
         evidence.- (1) Every pleading shall contain, and contain
         only, a statement in a concise form of the material facts
E
       . on which the party pleading relies for his claim or defence
         as the case may be, but not the evidence by which they
         are to be proved.
          (2)   xxx xxx xxx
F         (3)   xxx xxx xxx''
          31. Section 83(1 )(a) of the 1951 Act is as follows :
          "S. 83. Contents of petition.-(1) An election petition-
          (a) shall contain a concise statement of the material facts
G         on which the petitioner relies;"
          32. A bare perusal of the above provisions would show that
    the first part of Order VI Rule 2, CPC is similar to clause 1(a)
    of Section 83 of the 1951 Act. It is imperative for an election
    petition to contain a condse statement of the material facts on
H
     JITU PATNAIK v. SANATAN MOHAKUD & ORS.                    285
                  [R.M. LODHA, J.]

which the election petitioner relies. What are material facts? A
All basic and primary facts which must be proved at the trial
by a party to establish the existence of cause of action or
defence are material facts. The bare allegations are never
treated as material facts. The material facts are such facts
which afford a basis for the allegations made in the election B
petition. The meaning of .'material facts' has been explained .
by .this Court on more than one occasion. Without multiplying
the authorities, reference to one of the later decisions of this
Court in Virender Nath Gautam v. Satpal Singh and others8
shall suffice.                                                         c
                                      8
     33. In Virender Nath Gautam , this Court referred to the
leading case of. Philipps v. Philipps and Others 9 and the
subsequent.decision in Bruce v. Odhams Press Limited10 that
referred to Philipps9 and observed in paragraphs 34 and 35
(Pg. 629) of the Report as follows:                                    D
     . "34. Adistinction belween "material facts" and "particulars",
       however, must not be overlooked. "Material facts" are
       primary or basic facts which must be pleaded by the
       plaintiff or by the defendant in support of the case set up
       by him either to prove his cause of action or defence.          E
       "Particulars", on the other hand, are details in support of
       material facts pleaded by the party. They amplify, refine
       and embellish material facts by giving distinctive touch to
       the basic contours of a picture already drawn so as to
       make it full, more clear and more informative. "Particulars"    F
       thus ensure conduct of fair trial and would not take the
       opposite party by surprise.
      35. All "material facts" must be pleaded by the party in
support of the case set up by him. Since the object and purpose
is to enable the opposite party to know the case he has to meet G
with, in the absence of pleading, a party cannot be allowed to.

8.   2007 (3) sec 617.
9.   (187,8) 4 Q.B.D. 12.7 ..
10. (1936) 1 K.B. 697.                                                 H
    286       SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A lead evidence. Failure to state even a single material fact,
  hence, will entail dismissal of the suit or petition. Particulars,
  on the other hand, are the details of the case which is in the
  nature of evidence a party would be leading at the time of trial."
       34. Whether the averments in the election petition
B constitute material facts or not would depend upon facts of each
  case. As stated by this Court in Virender Nath Gautam 8 , no
  rule of universal application can be applied in finding out
  whether the statements of fact made in the election petition
  amount to material facts or not. It is, therefore, necessary to
C consider the pleadings with regard to suppression of 319 votes
  in paragraph 7(0) of the election petition.
       · 35. A close analysis of first part of paragraph 7(0) of the
    election petition would show that the statements comprise of
    the following facts :
0
          •     Illegality deliberately committed by the counting
                personnels while recording the counting figure in
                Form-20 with respect to Booth No. 179.
          •     The total number of voters as recorded in the
E               electoral roll with respect to Booth No. 179 is 1109.
          •     Whereas in Form-17C, certified copy, deliberately
                this figure has been shown wrongly as 1091.
          •     On the date of polling, on a plain perusal of register
                of voters maintained in Form-17A, it will be
F               abundantly clear that the total number of voters
                came to vote and signed 17-A register is 1091;
                whereas in Form-17C, it has been deliberately
                shown as 772 making a deliberate suppression of
                319 votes.
G
         36. Before we discuss the above pleadings further, it may
    be stated immediately that register of voters in Form-17A is
    not available for inspection. Rule 93 of the 1961 Rules provides
    for the production and inspection of election papers. Clause
    (dd) of Rule 93(1) makes a provision that the packets
H
   JITU PATNAIK v. SANATAN MOHAKUD & ORS.                        287
                [R.M. LODHA, J.]
containing register of voters in Form 17A, while in the custody          A
of the district election officer·or the returning officer, as the case
may be, shall not be opened and their contents shall not be
inspected by, or produced before, any person or authority
except under the order of a competent court.
     37. We now revert back to the pleadings set out in                  B
paragraph 7(D) as analysed above. There is no averment that
the election petitioner or any of his polling agents had perused
the register of voters maintained in Form 17A. The basis of the
knowledge that the register of voters maintained in Form 17A
records that 1091 voters came to vote is not disclosed at all.           c
Moreover, there is no pleading that 1091 voters who came to
vote at Booth No. 179 in fact voted. There is no merit in the
contention of Mr. Mukul Rohatgi that the facts stated in
paragraph 7(D) with regard to Form 17A shall be established
at the trial after Form 17A is summoned by the Court. We are             0
afraid such fanciful imagination of proof at the trial cannot be a
substitute of the pleading of material facts about the total
 number of voters who came to vote and in fact voted at Booth
 No. 179.
      38. The averment that in Form-17C, certified copy, it has          E
been deliberately shown as 772 making a deliberate
suppression of 319 votes hardly improves the pleading in the
election petition. There is no averment that the election
petitioner or his agents challenged part II of Form-17C before
authorities. At least, there are no facts pleaded concerning that.       F
There is no pleading that there was any challenge by the
election petitioner or his agents in respect of the counting figure
in Form-20. The only pleading is that the illegality has been
deliberately committed by the counting personnels while
recording the counting figure in Form-20 with respect to Booth           G
No. 179. There is, thus, no disclosure of material facts in respect
of the challenge to the correctness of Form-20 and Form-17C.
     39. The pleading of material facts with regard to
suppression of 319 votes in paragraph 7(0) is also incomplete
as it has not been disclosed who suppressed 319 votes; who               H
    288       SUPREME COURT REPORTS                  (2012] 2 S.C.R.


A was the counting agent present on behalf of the ele~tion
  petitioner at the time of counting; how 319 votes were
  suppressed and why recounting was not demanded. Moreover,
  there is no express pleading as to how the result of the election
  has been materially affected by less counting of 319 votes.
B       40. In Samant N. Balkrishna and Another v. George
  Fernandez and Others 11 while dealing with the requirement in
  an election petition as to the statement of material facts and
  the consequences of lack of such disclosure, this Court, inter
  alia, exposited the legal position that omission of even a single
C material fact leads to an incomplete cause of action and
  statement of claim becomes bad.
       41. The other part of paragraph 7(0) relating to 462 votes
  is based on the preceding paragraph. The preceding
  paragraph i.e., 7(C) has been already struck out by the High
0 Court. Therefore, the pleadings in paragraph 7(0) in respect
  of 462 votes do not survive as it is.
      · 42. In view of the above, we have no hesitation in holding
  that the averments made in paragraph 7(0) do not set out all
  the material facts and do not afford an adequate basis for the
E allegations made therein. The allegations in paragraph 7(0) for
  the reasons noted above do not constitute cause of action for
  declaring election of the returned candidate to be void.
        43. The High Court has already struck out paragraphs
F 7(8), 7(C), 7(E), 7(F) and 7(G). The remaining two paragraphs
  7(A) and 7(0), as noted above, do not disclose any cause of
  action and are liable to be struck out. After striking out
  paragraphs 7(A) and 7(0), we find that nothing remains in the
  election petition for trial and, therefore, election petition is liable
  to be rejected in its entirety.
G
        44. In the circumstances~ the appeal has to be allowed and
  is allowed. We do so without any order as to costs.
    R.P.                                              Appeal allowed.

H   11. 1969 (3) sec 238.