LexJITU PATNAIK versus SANATAN MOHAKUD & ORS.
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A B [2012] 2 S.C.R. 258 JITU PATNAIK v. SANATAN MOHAKUD & ORS. (Civil Appeal No. 2689 of 2012) MARCH 2, 2012 [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) a
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