DURAI MUTHUSWAMI versus N. NACHIAPPAN & ORS.

Citation: [1974] 1 S.C.R. 40 · Decided: 23-04-1973 · Supreme Court of India · Bench: D.G. PALEKAR, A. ALAGIRISWAMI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

40 
DURAi MUTHUSWAMI 
v. 
N. NACHIAPPAN & ORS. 
April 23, 1973 
[D. G. P_ALEKAR AND A. ALAGIR!SWAMJ, JJ.) 
.Reprr.se111utio1i of the Peopl'e Act, 1951-S. 81. 
100. 
101-Wheiher there 
.Mould be specific aver1nent in the petition tltat due to_ improper acceptance of 
Romination oaiu:r. the result of the eleclion had been marerially afiected-Whe~ 
ther 1he case falls wuler s. IOO(l)(a). 
The first respondent was 
declared elected 
to Tamil 
Nadu Legislative 
Assembly defeating his nearest rival, the petitioner. This appeal arises out of 
the dismissal of the election petition filed by the appellant for setting aside the 
result of that election. 
Many grounds had been urged before the High Court; 
but only one ground, which the High Court refused to go· into was urged before 
this Court: i.e .• that on the date of presenting his nomination 
pa~r, the Ist 
respondent had a subJisting contract with the State Government to widen a road 
at an estimated cost of Rei. 2 lakhs and that on the eve of presentation of nomina-
tion papers, he purported to surrender the contract by submitting an application 
for cancellation to the Division Engineer, whereas the contract was signed by 
the. Su_..,crintending Engineer, Madras Circle on b~haJf of the Government 
of 
Tamil Nadu, and this letter of cancellation was not valid and therefore there 
was noo valid cancellation of the contract. and as such, th: election of the 1st 
responder .. was void on that ground. 
Th: Hi2h Court. however, refused to go into the allegation on the ground 
that 1here was no specific averment jn the petition that du~ t? alleged improper 
reception on the 1st respondent's nomination paper.;, 1he electio nre~ult had been 
materiallv affected. 
AHowing the appeal, 
HEW: (i) Under s. 83(1) (a), an election petition shall contain a concise 
statement of material facts on which the petitioner relics. 
Under s. 100(1) if 
the High ·court is of ODinion that on the date of his election. a returned candi-
date wa~ ·not qualified to b: chosen to fill the seat or that the result of the elec-
tion has been materially affected by the imDroper acceDtance of any nomina-
tion etc.; the High Court shall declare the election of the returned candidate 
void. 
Therefore. what section 100 requires is that the High Court before 
it 
declares the election of a returned candidate void, should be of the opinion that 
the result of the election. in so far as it concerns a returned candidate. ·has been 
materially affected by the improper acceptance of any nomin·ation. Under s. 83', 
all that was necessary was a concise statement of the material faCcts on which the 
petitioner relies. 
(ii) In the present case, the appellant had stated that the election is void 
b~cause of th~ improDer acceptance of the 1st respondent's nomination. It was 
not necessary for him to further allege that the result of the election in so far 
as it concerns the returned candidate has been materially affected by the im-
proper acceptance of the 1st respondent's nomination. That is the obvious con-
clusion to be dra\\'n from the circumstances of this case. Further. the question 
of the election b:ing materiailv affected does not arise in a case falling under 
s. JOO(! )(a). All thats. 100(1 Ha) requires is that on the date of this election 
a returned candidate was not qualified or was disqualified to be chqsen to fill the 
seat under the Constitution or the Act. 
Under this section in ortler to declare 
his election void it is not necessary that el~ction petition should s~ate that the 
result of the electi<::in was materially affected thereby. [44G] 
Balakrishna y. f"arnandez, [1969] 3 S.C.R. 603,. referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 646 of 1972. 
Appeal under Sec. 116-A of the Representation of the People Act, 
1951, from the judgment and order dated February 18, 1972 of the 
Madras High Court in E.P. No. 13 of 1971. 
A 
B 
c 
D 
E 
F 
G 
H 
DURAi MUTHUSWAMI v. N. NACHIAPPAN (Alagiriswami, J.) 
41 
A 
M. Natesan, K. Jayaram and C. Chandrasekhar, for the appellant. 
B 
c 
D 
E 
F 
G 
H 
M. C. Clwgla and A. Subhashini, for respondent No. 1. 
S. Mohan and A. V. Rangam, for respondents Nos. 3 & 4. 
The Judgment of the Court was delivered by-
ALAGIRISWAMI, J.-This appeal arises out of the election held to 
fill up a seat in the Tamil Nadu Legislative Assembly from the San-
karapuram Constituency, South Arcot District, held in March 1971 
in which the first respondent obtained 28,544 

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