Gujarat High Court
Rahul Vasudevbhai Vyas vs Hemang Yogeshbhai Joshi on 12 December, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/EP/3/2024 JUDGMENT DATED: 12/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 3 of 2024
With
R/ELECTION APPLICATION NO. 12 of 2024
In
R/ELECTION PETITION NO. 3 of 2024
With
R/ELECTION APPLICATION NO. 14 of 2024
In
R/ELECTION PETITION NO. 3 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
========================================================
Approved for Reporting Yes No
========================================================
RAHUL VASUDEVBHAI VYAS
Versus
HEMANG YOGESHBHAI JOSHI & ORS.
========================================================
Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MR YASH N NANAVATY(5626) for the Respondent(s) No. 1
MR. SAHIL M SHAH(6318) for the Respondent(s) No. 2,3
MR ND NANAVATY SENIOR ADVOCATE WITH MR. MITUL SHELAT AND
MS DISHA N NANAVATY(2957) for the Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 12/12/2024
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. N.D. Nanavaty with
learned Advocate Mr. Mitul Shelat and learned Advocate Ms. Disha
Nanavaty on behalf of the applicant- original respondent no.1 and
party-in-person-Mr. Rahul Vasudevbhai Vyas for himself as the
respondent no.1- original petitioner and learned Advocate Mr. Sahil
M. Shah with learned Advocate Mr. Taukib M. Mandli for
respondents no.2 and 3 – original respondents no.2 and 3. [ The
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parties shall hereinafter be referred to as per their status in the
Election Petition].
2. By way of this application under Order VII Rule 11 (c) (d) of
the Code of Civil Procedure read with Sections 81, 82, 83 and 84 of
the Representation of Peoples Act, 1951 ( hereinafter referred to as ‘
The RP Act, 1951″ for short ) the respondent no.1 has prayed that
this Court may reject election petition preferred by the original
petitioner -party-in-person.
2.1 Briefly stated, the original petitioner and respondent no. 1 had
contested elections to the Lok Sabha in the Vadodara- 20
constituency, which was held on 07.05.2024. The applicant-original
respondent no. 1 had secured the highest number of votes and had
been declared as elected, whereas the original petitioner, who had
contested the election as an independent candidate, had lost the
election. The original petitioner had thereafter preferred Election
Petition No. 3 of 2024, inter alia seeking to declare election of the
original respondent no. 1 as void and whereas certain other prayers
had also been sought for. This Court having issued summons to the
respondents, the original respondent no. 1, had filed his written
statement as well as Election Application No. 12 of 2024 i.e. the
present election application. On the other hand respondents no. 2
and 3 i.e. The Returning Officer and the Election Commission of
India had preferred Election Application No. 14 of 2024, seeking for
a declaration that the Returning Officer and Chief Electoral Officer
are not necessary parties and could not be joined in the election
petition and that they may be deleted from the array of party
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respondents.
3. Since the application preferred by the original respondent no.1,
was the first in priority and considering that he was seeking for a
prayer to reject the election petition itself, the said application had
been heard by this Court.
4. Leaned Senior Advocate Mr. Nanavaty appearing for original
respondent no. 1 would at the outset take this Court extensively
through the provisions of the RP Act, 1951 more particularly to the
relevant provisions which have a bearing on the issue in question.
5. Learned Senior Advocate would take this Court through
Section 100 of the RP Act, 1951 and would submit that Section 100
inter alia states the grounds for declaring an election to be void by the
High Court, more particularly learned Senior Advocate would lay
emphasis on Section 100(1)(d) and submit that the requirement for
declaring the election of a returned candidate to be void would be on
the ground of the result of the election concerning the returned
candidate has been materially effected by the aspects found in Section
100(1)(d)(i) to (iv). It is submitted that sub-sections d(i) to (iv) state
about improper acceptance of nomination, a corrupt practice had
been committed or an improper rejection, refusal of rejection of any
vote or there has been non compliance with provisions of the
Constitution or of the said Act or Rules or Orders made thereunder.
It is submitted by learned Senior Advocate that what has to be
appreciated is whether the election has been materially effected or
not on account of the aspects mentioned. It is submitted by learned
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Senior Advocate that the entire Election Petition is bereft of any
averments that the election had been materially effected on account
of the petitioner indulging in any of the acts as mentioned in Section
100(d)(i) to (iv) or even otherwise on the other issues.
5.1 Learned Senior Advocate would thereafter rely upon Section
83 of the RP Act, 1951 and would submit that the requirements of
the said section which lays down the required content in an election
petition i.e. concise statement of material facts, full particulars of
corrupt practice, including full statements of the possible parties to
the corrupt practice and date and place of the commission thereof as
well as a verification by the petitioner as provided in the Code for
Civil Procedure. It is submitted by the learned Senior Advocate that
the requirement of Section 83 has not been complied with at all.
5.2 Learned Senior Advocate would also rely upon proviso which
states about affidavit in the prescribed format being required to be
filed if an allegation of corrupt practice has been made and whereas it
is submitted that such affidavit has not been filed.
5.3 Learned Senior Advocate would thereafter rely upon Section
84 of the RP Act, 1951 and would submit that while the petitioner of
an election petition is entitled to claim a declaration that election of
returned candidate is void; and further claim a declaration that he
himself or any other candidate has been duly elected, yet, the prayers
made in the petition are beyond the scope of Section 84 of the RP
Act.
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86 of the RP Act 1951 and would submit that under Section 86(1) of
the Act the High Court would dismiss an Election Petition which did
not comply with the requirement of sections 81 or 82 of the or
section 117.
6. Learned Senior Advocate would thereafter draw the attention
of this Court to the pleadings in the Election Petition. Learned Senior
Advocate would submit that while paragraphs no. 2.1 to 2.3 state the
facts whereas paragraphs no. 3.1 to 3.5 are the grounds of challenge.
Learned Senior Advocate would submit that five grounds have been
raised namely
(1) improper acceptance of nomination;
(2) non compliance of Rules;
(3) violation of Code of Conduct;
(4) illegal practices and
(5) violation of constitutional rights.
7. Learned Senior Advocate would submit that none of the
grounds either refer to any corrupt practice indulged into by the
original respondent no. 1 nor does the averments make out a case as
to how the results were materially effected. Learned Senior Advocate
would thereafter rely upon decision of Hon’ble Supreme Court in
case of Ram Sukh vs. Dinesh Aggrawal reported in 2009 (10) SCC
541 and would submit that the Hon’ble Supreme Court has in the
said decision inter alia held, relying upon earlier decisions that
omission of the single material fact would lead to incomplete cause of
action and that an Election Petition without material facts is not an
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Election petition at all. Learned Senior Advocate would further
submit that the Hon’ble Supreme Court had inter alia reiterated that
all facts which are essential to clothe the petition with complete
cause of action must be pleaded and omission of even a single
material fact would amount to disobedience of the mandate under
Section 83(1)(a) of the Representation of Peoples Act, 1951 and an
Election Petition suffering from such a vice could be dismissed.
7.1. Learned Senior Advocate would further submit that as per the
law laid down by the Hon’ble Supreme Court in the above decision
explaining the scope and ambit of Section 100 of RP Act, 1951, in
order to get an election declared as void the petitioner should make
appropriate averments as regards the election being materially
effected.
7.2 Learned Senior Advocate would also emphasize that the
Hon’ble Supreme Court in the said decision had scrutinized the
pleadings of the election petition and had come to a conclusion that
averment with regard to election being materially effected was not
found and whereas inter alia on such ground, the decision of the
Hon’ble High Court rejecting the election petition at the threshold
was confirmed.
7.3 Learned Senior Advocate would thereafter rely upon decision
of the Hon’ble Supreme Court in case of Mangani Lal Mandal vs.
Bishnu Deo Bhandari reported in 2012(3) SCC 314 and would submit
that the Hon’ble Supreme Court in the said decision has inter alia laid
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down that not only is election petitioner required to plead and prove
as regards existence of one of the aspects as found in Section 100(1)
(d) and is also required to plead and prove that the result of election
insofar as the returned candidate has been materially affected on
account of the same. Learned Senior Advocate would inter alia
submit that in absence of pleading as regards suppression by the
returned candidate, on which basis the High Court had interfered in
the Election Petition, materially effecting the result, the decision of
the High Court declaring election of the returned candidate as being
void was set aside.
7.4 Learned Senior Advocate would thereafter rely upon recent
decision of the Hon’ble Supreme Court in case of Karim Uddin
Barbhuiya vs. Aminul Haque Laksar reported in 2024 SCC Online SC
504. Learned Senior Advocate would submit that the Hon’ble
Supreme Court in the said decision has inter alia held that pleadings
in an election petition have to be precise, specific and unambiguous
that if an election petition does not disclose cause of action as
relatable to the grounds specified in section 100 of the RP Act, 1951
then the petition is liable to the dismissed in limine. It is also
observed that if the pleadings do not confirm with the requirements
of Sections 81 and 83 of the RP Act,1951 the petition could be
rejected under Order VII Rule 11 of Civil Procedure Code.
According to learned Senior Advocate the Hon’ble Supreme Court
had examined the election petition and having found that the petition
contains bald and vague allegations without any material facts as
required to be stated under Section 83(1)(a) of the RP Act, 1951 and
furthermore the Hon’ble Supreme Court having come to a
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conclusion that election petition lacked concise statement of material
facts and also lacks full particulars had dismissed the election petition.
7.5 Learned Senior Advocate referring to the above judgements
would submit that the petition is not an election petition as per the
requirements of the RP Act, 1951. It is submitted that neither there
are full particulars of the fact nor does the petition contain grounds as
per Section 100(1) (d) of the RP Act, 1951 nor does the pleading state
as to how the alleged malpractices/corrupt practices have materially
affected the result of election in favour of the returned candidate.
Learned Senior Advocate would submit that as such, none of the
grounds referred in Section 100(1)(d)(i ) to (iv), has been made out in
the grounds no. 3.1 to 3.5 and therefore, it is submitted that this
Court may set aside the election petition under the provisions of the
Civil Procedure Code as well as the provisions of the Representation
of Peoples Act, 1951.
8. This application is vehemently opposed by the original
petitioner – party-in-person. It is submitted by the party-in-person
relying upon the reply filed to the present application that the election
petition complies with the requirement under the Representation of
Peoples Act, 1951 and that the petition discloses clear cause of action
and grounds relatable to Section 100(1)(d) have been averred. The
party-in-person would in this regard refer to decision of the Hon’ble
Supreme Court in case of Ashraf Kokkur vs. K.V. Abdul Khader etc.
reported in 2015(1) SCC 129. The party-in-person would submit that
since the petition discloses cause of action, the same could not be
dismissed in limine and whereas the issues raised in the petition
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would have to be tried. The party-in-person would submit relying
upon the decision that inquiry under Order VII Rule 11 of Code of
Civil Procedure is only as to whether the facts as pleaded disclose a
cause of action, and not a complete cause of action. It is further
submitted that the Hon’ble Supreme Court has observed that
whether a particular fact is material or not is depended on the nature
of charge levelled and circumstances of the case and that an election
petition could not be dismissed in limine because full particulars of
corrupt practice already were not set out. The party-in-person would
also take this Court through the law laid down by the Hon’ble
Supreme Court in earlier decisions as referred to by the Hon’ble
Supreme Court in case of Ashraf Kokkur (supra) and relying upon
the same would submit that the election petition is not required to be
dismissed in limine.
8.1 The party-in-person has further relied upon decision of the
Hon’ble Supreme Court in case of K.K. Ramchandran Master vs.
M.V. Sreyamskumar & Ors. reported in 2010 (7) SCC 428. Referring
to the said decision party-in-person would submit that the Hon’ble
Supreme Court has observed that Section 83 of the RP Act, 1951
requires an election petition to contain a concise statement of
material facts and that deficiency in providing particulars of corrupt
practice could be made up at a later stage. It is emphasized that a
petition is to be dismissed upon the petition not disclosing material
facts, not disclosing cause of action, on the ground of deficiency or
non disclosure of particulars of corrupt practice only if the election
petitioner does not cure the defect inspite of opportunity being given
by the Court. The party-in-person has also relied upon observations
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of the Hon’ble Supreme Court relying upon earlier decisions to
contend that material facts on which party relies for his claim are facta
probanda and they must be stated in the pleadings while facts by
means of which the facta probanda – material facts, are to be proved
are in the nature of facta probantia ( particulars or evidence). The same
are not required to be pleaded as they are not fact in issue but they
are only relevant facts required to be proved at the trial. The party-in-
person would thereafter elaborately take this Court through the
written statement to the Election Application and also to the petition
itself. Relying thereupon, the party-in-person would submit that the
Election Petition contains material facts including allegations of
corrupt practices. It is submitted that the petition is not a defective
petition as per the provisions of the RP Act, 1951. It is submitted
that the petition complies with the requirement of Sections 81, 82, 86
and 117 of the RP Act,1951. It is submitted that the petition
discloses a valid cause of action, and hence is not required to be
interfered under Order VII Rule 11 of the Code of Civil Procedure. It
is submitted that the corrupt practice and its effect on the election
has been highlighted. Thus submitting the party-in-person would
request this Court not to entertain the application and to reject the
same and to decide the election petition on its own merits.
9. In rejoinder learned Senior Advocate would submit that
Section 123 of the Representation of Peoples Act, 1951, lays down 8
different circumstances, which would be deemed as corrupt practice
and would submit that the entire election petition does not contain a
single averment corelatable to any of the said aspects. Learned Senior
Advocate would reiterate that the petition is completely bereft of any
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cause of action, does not state any material facts and particulars, does
not make any allegations or averments as regards corrupt practice
and how the same has materially effected the election. That specific
averments which are required to be made in the petition with regard
to the acts indulged into by returned candidate, which have to be
stated with exact facts, has not been specifically stated. In this regard
learned Senior Advocate would also rely upon decision of the
Hon’ble Supreme Court in case of Azahar Hussain vs. Rajiv Gandhi
reported in 1986 Supplementary (SCC )315. Learned Senior
Advocate, relying upon the above decision and the submission made,
would request this Court to allow the present election application and
to dismiss the election petition.
10. Heard learned Senior Advocate on behalf of the original
respondent no.1 and the original petitioner as party-in-person and
perused the documents on record.
11. Before analyzing the submissions made by both the parties, it
would be apposite to first appreciate the legal position as to when an
election petition can be dismissed upon non compliance of Sections
81 to 83 and Section 100 of the R P Act, 1951 as well as under the
Order VII Rule 11 of the Code of Civil Procedure. In this regard the
Court proposes to analyze the decision of the Hon’ble Supreme
Court as relied upon by both the parties.
12. Learned Senior Advocate for the original respondent no. 1 has
relied upon decision in case of Ram Sukh vs. Dinesh Aggrawal
(supra) and whereas paragraphs no. 20, 21, 22, 23 and 24 being
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relevant for the present purpose are reproduced hereinbelow for
benefit:
“20. The issue was again dealt with by this Court in Azhar
Hussain Vs. Rajiv Gandhi. Referring to earlier pronouncements of
this Court in Samant N. Balkrishna (supra) and Udhav Singh Vs.
Madhav Rao Scindia wherein it was observed that the omission of a
single material fact would lead to incomplete cause of action and that
an election petition without the material facts is not an election
petition at all, the Bench held that all the facts which are essential to
clothe the petition with complete cause of action must be pleaded and
omission of even a single material fact would amount to disobedience
of the (1972) 1 SCC 214 1986 (Supp) SCC 315(1977) 1 SCC 511
mandate of Section 83(1)(a) of the Act and an election petition can be
and must be dismissed if it suffers from any such vice.
21. We may now advert to the facts at hand to examine whether
the election petition suffered from the vice of non-disclosure of
material facts as stipulated in Section 83(1)(a) of the Act. As already
stated the case of the election petitioner is confined to the alleged
violation of Section 100(1)(d)(iv). For the sake of ready reference, the
said provision is extracted below:
“100. Grounds for declaring election to be void.–(1) Subject to
the provisions of sub-section (2) if the High Court is of opinion–
* * *
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected* * *
(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.”
It is plain that in order to get an election declared as void under the
said provision, the election petitioner must aver that on account of
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non-compliance with the provisions of the Constitution or of this Act
or of any rules or orders made under the Act, the result of the
election, insofar as it concerned the returned candidate, was materially
affected.
22. As already stated, in the present case, the allegation of the
election petitioner is that the Returning Officer failed to circulate the
attested signatures of his election agent to various polling stations
and, therefore, failed to comply with para 12 of Chapter VII of the
Handbook for Returning Officers. The pleadings in the election
petition, in relation to grounds (i) and (ii), extracted in para 2 above,
were as under:
“11. That due to aforesaid inaction of the Returning Officer the
polling agent of the petitioner was not permitted to function till
3.00 P.M. by which time more than 80% polling was over. This
inaction on the part of Returning Officer materially affected the
election as almost all other polling agents of the petitioner working
in other polling stations got confused and supporters of the
petitioner either returned back or voted for congress candidate.
12. That the Returning Officer was duty bound to send required
Praroop of the petitioner and his agent’s signature one day before
the day of election which he did not do. Due to his inaction of the
Returning Officer the election of 13 Laxman Chowk Legislative
Assembly Constituency was materially affected.”
23. There is no quarrel with the proposition that the instructions
contained in the Handbook for the Returning Officers are issued by
the Election Commission in exercise of its statutory functions and
are, therefore, binding on the Returning Officers. They are obliged to
follow them in letter and spirit. But the question for consideration is
whether the afore-extracted paragraphs of the election petition
disclose material facts so as to constitute a complete cause of action.
In other words, the question is whether the alleged omission on the
part of the Returning Officer ipso facto “materially affected” the
election result. It goes without saying that the averments in the said
two paragraphs are to be read in conjunction with the preceding
paragraphs in the election petition. What is stated in the preceding
paragraphs, as can be noticed from grounds (i) and (ii) reproduced
above, is that by the time specimen signature of the polling agent
were circulated 80% of the polling was over and because of the
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absence of the polling agent the voters got confused and voted in
favour of the first respondent. In our opinion, to say the least, the
pleading is vague and does not spell out as to how the election results
were materially affected because of these two factors. These facts fall
short of being “material facts” as contemplated in Section 83(1)(a) of
the Act to constitute a complete cause of action in relation to
allegation under Section 100(1)(d)(iv) of the Act. It is not the case of
the election petitioner that in the absence of his election agent there
was some malpractice at the polling stations during the polling.
24. It needs little reiteration that for purpose of Section 100(1)
(d)(iv), it was necessary for the election petitioner to aver specifically
in what manner the result of the election insofar as it concerned the
first respondent, was materially affected due to the said omission on
the part of the Returning Officer. Unfortunately, such averment is
missing in the election petition.”
13. The Hon’ble Supreme Court in the above quoted portion
referring to earlier decisions of the Hon’ble Supreme Court laid
down that omission of a single material fact would lead to an
incomplete cause of action. It is also held that an election petition
without material facts is not an election petition at all. It is further
held that all facts which are essential to ensure that the petition
reveals complete cause of action must be pleaded and omission of
even a single material fact would amount to disobedience of the
mandate of Section 83 (1)(a) of the Representation of Peoples Act,
1951 and on such count, the election petition ‘can be and must be
dismissed if it suffers from any such vice’. It is further observed that
the election petitioner must make appropriate averments in the
petition and on account of non- compliance with the provisions of
Constitution of India or Representation of Peoples Act, 1951 or
Rules or Orders made thereunder, the result of the election with
regard to the returned candidate was materially effected. The Hon’ble
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Supreme Court inter alia holding that material facts as contemplated
in Section 83(1)(a) of the Representation of Peoples Act, 1951, are
required to be averred to constitute a complete cause of action in
relation to allegation under Section 100 (1)(d)( iv) of the Act.
13.1 From the above position it becomes clear that an election
petition should state all the material facts for making out a complete
cause of action and omission of a single material fact would lead to an
election petition being dismissed on the ground of non-fulfillment of
mandate of Section 83(1)(a) of the Representation of Peoples Act,
1951. It also becomes clear that for the purpose of Section 100 (1) (d)
(iv) the election petitioner is required to specifically state as to how
the result of the election insofar as the returned candidate was
materially effected. In absence of the same, a complete cause of
action could not be said to have been pleaded resulting in the petition
being dismissed.
14. Learned Senior Advocate for the original respondent no. 1 has
relied upon decision of the Hon’ble Supreme Court in case of
Mangani Lal Mandal vs. Bishnu Deo Bhandari (supra) and whereas
paragraphs no.10 to 13 of the said decision being relevant for the
present purpose are reproduced hereinbelow for benefit:
“10. A reading of the above provision with Section 83 of the
1951 Act leaves no manner of doubt that where a returned
candidate is alleged to be guilty of non- compliance of the
provisions of the Constitution or the 1951 Act or any rules or
orders made thereunder and his election is sought to be declared
void on such ground, it is essential for the election petitioner to
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by such breach or non-observance. If the election petition goes to
trial then the election petitioner has also to prove the charge of
breach or non- compliance as well as establish that the result of the
election has been materially affected. It is only on the basis of such
pleading and proof that the Court may be in a position to form
opinion and record a finding that breach or non-compliance of the
provisions of the Constitution or the 1951 Act or any rules or
orders made thereunder has materially affected the result of the
election before the election of the returned candidate could be
declared void.
11. A mere non-compliance or breach of the Constitution or the
statutory provisions noticed above, by itself, does not result in
invalidating the election of a returned candidate under Section
100(1)(d)(iv). The sine qua non for declaring election of a returned
candidate to be void on the ground under clause (iv) of Section
100(1)(d) is further proof of the fact that such breach or non-
observance has resulted in materially affecting the result of the
returned candidate. In other words, the violation or breach or non-
observation or non-compliance of the provisions of the
Constitution or the 1951 Act or the rules or the orders made
thereunder, by itself, does not render the election of a returned
candidate void Section 100(1)(d)(iv). For the election petitioner to
succeed on such ground viz.,Section 100(1)(d)(iv), he has not only
to plead and prove the ground but also that the result of the
election insofar as it concerned the returned candidate has been
materially affected. The view that we have taken finds support
from the three decisions of this Court in (1) Jabar Singh Vs. Genda
Lal3; (2) L.R. Shivaramagowda and Others Vs. T.M.
Chandrashekhar (dead) by Lrs. And ) an Others.4 and (3) Uma
Ballav Rath (Smt.) Vs. Maheshwar Mohanty.
12. Although the impugned judgment runs into 30 pages, but
unfortunately it does not reflect any consideration on the most
vital aspect as to whether the non-disclosure of the information
concerning the appellant’s first wife and the dependent children
born out of that wedlock and their assets and liabilities has
materially affected the result of the election insofar as it concerned
the returned candidate. As a matter of fact, in the entire election
petition there is no pleading at all that suppression of the
information by the returned candidate in the affidavit filed alongPage 16 of 53
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with the nomination papers with regard to his first wife and
dependent children from her and non- disclosure of their assets
and liabilities has materially affected the result of the election.
There is no issue framed in this regard nor there is any evidence let
in by the election petitioner. The High Court has also not formed
any opinion on this aspect.
13. We are surprised that in the absence of any consideration on
the above aspect, the High Court has declared the election of the
returned candidate to the 15th Lok Sabha from the Jhanjharpur
Parliamentary Constituency to the void. The impugned judgment of
the High Court is gravely flawed and legally unsustainable. As a
matter of law, the election petition filed by the election petitioner
deserved dismissal at threshold yet it went into the whole trial
consuming Court’s precious time and putting the returned
candidate to unnecessary trouble and inconvenience.”
15. Considering the above quoted paragraphs it would clearly
appear that the Hon’ble Supreme Court has inter alia laid down that
for an election petition to succeed under Section 100(1)(d)(iv) the
petitioner should plead and prove that there has been breach as laid
down in the said provision which has resulted in the election insofar
as it concerns the returned candidate has been materially effected. It
would be pertinent to mention here that the decision of the Hon’ble
Supreme Court was in a situation where the High Court after leading
and recording of evidence in the trial had set aside the election of the
candidate and whereas the Hon’ble Supreme Court had on the
ground of suppression by the returned candidate, had set aside the
decision of the High Court. While the Hon’ble Supreme Court was
dealing with the final judgement, and whereas this Court is
considering an application for rejecting the election petition yet, the
observation of the Hon’ble Supreme Court that on the legal aspect as
laid down by the Hon’ble Supreme Court the election petition was
required to be dismissed, would, permit this Court to rely upon the
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law laid down though the circumstances are not quite similar.
16. The learned Senior Advocate appearing for the original
respondent has also relied upon the decision of the Hon’ble Supreme
Court in case of Azhar Hussain vs. Rajiv Gandhi (supra). At this stage
it is required to be mentioned that while the propositions as laid
down by the Hon’ble Supreme Court in the above decision has been
reiterated by the Hon’ble Supreme Court in the above quoted
decision, yet, for the sake of benefit, paragraph no. 14 where the
Hon’ble Supreme Court has explained the scope and ambit of the
expression “material facts and particulars” being relevant for the
present purpose is reproduced hereinbelow for benefit:
“14. Before we deal with these grounds seriatim, we consider it
appropriate to restate the settled position of law as it emerges from
the numerous decisions of this Court which have been cited before
us in regard to the question as to what exactly is the content of the
expression `material facts and particulars’, which the election
petitioner shall incorporate in his petition by virtue of Section 83(1)
of the Act.
“(1) What are material facts and particulars ? Material
facts are facts which if established would give the petitioner
the relief asked for. The test required to be answered is
whether the Court could have given 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.
(2) In regard to the alleged corrupt practice pertaining to
the assistance obtained from a Government servant, the
following facts are essential to clothe the petition with a
cause of action which will call for an answer from the
returned candidate and must therefore be pleaded.
a) mode of assistance;
b) measure of assistance; and
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c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring,
obtaining, abetting or attempting to obtain or procure the
assistance of Government servants in election it is
absolutely essential to plead the following :
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was obtained or procured
or attempted to be obtained or procured by the election-
candidate for promoting the prospects of his election
(4) The returned candidate must be told as to what
assistance he was supposed to have sought, the type of
assistance, the manner of assistance, the time of assistance,
the persons from whom the actual and specific assistance
was procured
(5) There must also be a statement in the election petition
describing the manner in which the prospects of the
election was furthered and the way in which the assistance
was rendered.”
17. On the other hand, the party-in-person has relied upon
decision of the Hon’ble Supreme Court in case of Ashraf Kokkur vs.
K.V. Abdul Khader etc. (supra). Paragraphs no. 25, 26, 27, 28, 29, 30,
31, 32, and 33 being relevant for the present purpose are reproduced
hereinbelow for benefit:
“25. After all, the inquiry under Order VII Rule 11(a) of CPC is
only as to whether the facts as pleaded disclose a cause of action and
not complete cause of action. The limited inquiry is only to see
whether the petition should be thrown out at the threshold. In an
election petition, the requirement under Section 83 of the RP Act is
to provide a precise and concise statement of material facts. The
expression ‘material facts’ plainly means facts pertaining to the
subject matter and which are relied on by the election petitioner. If
the party does not prove those facts, he fails at the trial (see Philipps
v. Philipps and others; Mohan Rawale v. Damodar Tatyaba alias
Dadasaheb and others).
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26. This Court in Azhar Hussain v. Rajiv Gandhi, at Paragraph-
11, has held that:
“11. … 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. …” The charge levelled is that
the respondent holds an office of profit as the Chairperson
of the Kerala State Wakf Board and in that capacity he
enjoys the profits attached to that office from the
Government of Kerala.
27. In V.S. Achuthanandan v. P.J. Francis and another, a three-
Judge Bench of this Court has taken the view that only because full
particulars are not given, an election petitioner is not to be thrown
out at the threshold. To quote Paragraph-15:
“15. … An election petition was not liable to be dismissed
in limine merely because full particulars of corrupt practice
alleged were not set out. It is, therefore, evident that
material facts are such primary facts which must be proved
at the trial by a party to establish existence of a cause of
action. Whether in an election petition a particular fact is a
material fact or not, and as such, required to be pleaded is a
question which depends on the nature of the charge
levelled, the ground relied upon, and in the light of the
special circumstances of the case. ..”
28. Again at Paragraph-16 of V.S. Achuthanandan case (supra),
it was held that:
“16. … So long as the claim discloses some cause of action
or raises some questions fit to be decided by a Judge, the
mere fact that the case is weak and not likely to succeed is
no ground for striking it out. The implications of the
liability of the pleadings to be struck out on the ground
that it discloses no reasonable cause of action are generally
more known than clearly understood. …” xxx xxx xxx “…
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of action is distinct from the absence of full particulars.
…” (Emphasis supplied)
29. In Hari Shanker Jain v. Sonia Gandhi , a three-Judge Bench
of this Court held that the expression ’cause of action’ would mean
facts to be proved, if traversed, in order to support his right to the
judgment of the court and that the function of the party is to present
a full picture of the cause of action with such further information so
as to make opposite party understand the case he will have to meet.
To quote Paragraph-23:
“23. … 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.”
30. In Syed Dastagir v. T.R. Gopalakrishna Setty, while
referring to the pleadings, it has been held at Paragraph-9 that:
“9. … In construing a plea in any pleading, courts must keep
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but an expression through words to place fact and law of
one’s case for a relief. Such an expression may be pointed,
precise, sometimes vague but still it could be gathered what
he wants to convey through only by reading the whole
pleading, depending on the person drafting a plea. …” ” …
So to insist for a mechanical production of the exact words
of a statute is to insist for the form rather than the essence.
So the absence of form cannot dissolve an essence if already
pleaded.”
31. In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V.
Fortune Express, this Court at Paragraph-12 held that:
“12. … The court has to read the entire plaint as a whole to
find out whether it discloses a cause of action and if it does,
then the plaint cannot be rejected by the court exercising the
powers under Order 7 Rule 11 of the Code. Essentially,
whether the plaint discloses a cause of action, is a question of
fact which has to be gathered on the basis of the averments
made in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are
required to be proved for obtaining relief and for the said
purpose, the material facts are required to be stated but not
the evidence except in certain cases where the pleadings
relied on are in regard to misrepresentation, fraud, wilful
default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires
determination by the court, the mere fact that in the opinion
of the Judge the plaintiff may not succeed cannot be a
ground for rejection of the plaint.”
32. In a recent decision in , Ponnala Lakshmaiah v. Kommuri
Pratap Reddy and othersthis Court had held at Paragraphs-17 and
29 that:
“17. … The courts need to be cautious in dealing with
requests for dismissal of the petitions at the threshold and
exercise their powers of dismissal only in cases where even
on a plain reading of the petition no cause of action is
disclosed.” (Emphasis supplied) xxx xxx xxx “29. … AnPage 22 of 53
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election which is vitiated by reason of corrupt practices,
illegalities and irregularities enumerated in Sections 100 and
123 of the Act cannot obviously be recognised and respected
as the decision of the majority of the electorate. The courts
are, therefore, duty-bound to examine the allegations
whenever the same are raised within the framework of the
statute without being unduly hypertechnical in their
approach and without being oblivious of the ground
realities.”
33. Finally, as cautioned by this Court in Raj Narain v. Indira
Nehru Gandhi and another , it was held that:
“19. Rules of pleadings are intended as aids for a fair trial
and for reaching a just decision. An action at law should not
be equated to a game of chess. Provisions of law are not
mere formulae to be observed as rituals. Beneath the words
of a provision of law, generally speaking, there lies a juristic
principle. It is the duty of the court to ascertain that
principle and implement it. …”
(Emphasis supplied)”
17.1. Considering the above observations of the Hon’ble Supreme
Court it would appear that in exercise of powers under Order VII
Rule 11 (a), the inquiry which the Court is required to conduct is to
find out whether the facts pleaded disclosed any cause of action, as
against a complete cause of action. It is further held that the Court is
not required to reject a petition on the ground that it is not likely to
succeed rather the Court has to consider whether the claim discloses
some cause of action or question which are required to be decided. It
is also observed relying upon decision of the Hon’ble Supreme Court
in case of Harishankar Jain vs. Sonia Gandhi reported in 2001(8)
SCC 223 that the election petitioner is required to present a full
picture of cause of action and whereas it also appears from the
quoted paragraph in case of Harishankar Jain that failure to pleadPage 23 of 53
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material facts is fatal to the election petition and no amendment of
pleadings is permissible to introduce such material facts after the time
limit prescribed for filing the election petition.
18. The party-in-person has also relied upon decision of the
Hon’ble Supreme Court in case of K.K. Ramchandran Master vs.
M.V. Sreyamakumar & Ors. (supra) and whereas paragraphs no. 5, 6,
7, 8, 9 and 10 being relevant for the present purpose are reproduced
hereinbelow for benefit:
“5. The provisions of Section 83 (supra) have fallen for
interpretation in several cases leading to a long line of decisions
that have understood the said provisions to mean that while an
election petition must necessarily contain a statement of
material facts, deficiency if any, in providing the particulars of a
corrupt practice could be made up by the petitioner at any later
stage. The provision has been interpreted to mean that while a
petition that does not disclose material facts can be dismissed
as one that does not disclose a cause of action, dismissal on the
ground of deficiency or non-disclosure of particulars of corrupt
practice may be justified only if the election petitioner does not
despite an opportunity given by the Court provide the
particulars and thereby cure the defect. We do not consider it
necessary to refer to all the decisions delivered on the subject
as reference to some only of such decisions shou ld in our
opinion suffice.
6. In Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC
238 this Court held that Section 83 was mandatory and requires the
election petition to contain a concise statement of material facts and
the fullest possible particulars of the corrupt practices if any alleged.
The use of word “material facts” observed by the Court shows that
facts necessary to formulate a complete cause of action must be
stated. Omission of a single material fact could consequently lead to
an incomplete cause of action. The function of particulars isPage 24 of 53
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however only to present a full picture of the cause of action with
such further information in detail as is sufficient to make the
opposite party understand the case he is called upon to meet. There
may be some overlapping between material facts and particulars but
the two are quite distinct, observed the court. Material facts will
show the ground of corrupt practice and the complete cause of
action while particulars will give necessary information to present a
full picture of the same.
7. In Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850, this
Court had another opportunity to interpret the provisions of
Section 83 and to cull out the principles that would determine
whether an election petition complied with the requirement of the
said provision. This Court cautioned that just because a corrupt
practice has to be strictly proved did not mean that a pleading in an
election proceedings should receive a strict construction. Even a
defective charge, observed the Court, did not vitiate a criminal trial
unless it was proved that the same had prejudiced the accused. If a
pleading on a reasonable construction could sustain the action, the
court should accept that construction and be slow in dismissing an
election petition lest it frustrates an action only on technical
grounds. The court also observed that a charge of corrupt practice
is no doubt a very serious charge but the court has to consider
whether the petitioner should be refused an opportunity to prove
the allegations made by him merely because the petition was drafted
clumsily. The following passages from the decision in Raj Narain’s
case (supra) are apposite in this regard:
“While a corrupt practice has got to be strictly proved but from that
it does not follow that a pleading in an election proceeding should
receive a strict construction. This Court has held that even a
defective charge does not vitiate a criminal trial unless it is proved
that the same has prejudiced the accused. If a pleading on a
reasonable construction could sustain the action, the court should
accept that construction. The courts are reluctant to frustrate an
action on technical grounds.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX The charge of corrupt practice in an election
is a very serious charge. Purity of election is the very essence of realPage 25 of 53
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democracy. The charge in question has been denied by the
respondent. It has yet to be proved. It may or may not be proved.
The allegations made by the appellant may ultimately be proved to
be wholly devoid of truth. But the question is whether the appellant
should be refused an opportunity to prove his allegations? Should
the court refuse to enquire into those allegations merely because the
appellant or someone who prepared his brief did not know the
language of the law. We have no hesitation in answering those
questions in the negative.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxx xxxxxxxx If the allegations made regarding a corrupt practice do
not disclose the constituent parts of the corrupt practice alleged, the
same will not be allowed to be proved and further those allegations
cannot be amended after the period of limitation for filing an
election petition; but the court may allow particulars of any corrupt
practice alleged in the petition to be amended or amplified.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Rules of pleadings are intended
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxas aids for a fair trial and for reaching a just decision. An action at
law should not be equated to a game of chess. Provisions of law are
not mere formulae to be observed a rituals. Beneath the words of a
provision of law, generally speaking, there lies a juristic principle. It
is the duty of the court to ascertain that principle and implement it.”
8. The above principles have been reiterated by this Court in H.D.
Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217; V.S.
Achuthanandan v. P.J. Francis, (1999) 3 SCC 737; Mahendra Pal v.
Ram Dass Malanger, (2000) 1 SCC 261 and Sardar Harcharan Singh
Brar v. Sukh Darshan Singh, (2004) 11 SCC 196.
9. Reference may also be made to Harkirat Singh v. Amrinder
Singh, (2005) 13 SCC 511, where this Court reiterated the
distinction between material facts and particulars and held that
while material facts are primary and basic facts which must be
pleaded by the plaintiff, particulars are details in support of such
material facts. They simply amplify, refine and embellish the
material facts by giving distinctive touch to the basic contours of a
picture already drawn so as to make it more clear and informative.
Particulars thus ensure conduct of a fair trial so that the opposite
party is not taken by surprise. To the same effect is the decision of
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this Court in Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740,
where the Court held that even if the respondents raised an
objection in his counter affidavit and the appellant had despite the
opportunity to cure the defect pointed out by the respondent did
not do so yet an election petition cannot be dismissed on the
ground that the petitioner had not cured any such defects. The
petitioner was entitled to bona fide believe that the petition is in all
respects complete and if the High Court found it otherwise it
would give an opportunity to him to amend or cure the defect. This
court also held that while dealing with election petitions the Court
should not adopt a technical approach only to dismiss the election
petitions on the threshold.
10.In Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617,
this Court made a distinction between the need for supporting
material facts and the means by which such facts are proved by the
party alleging the same:
“There is distinction between facta probanda (the facts required
to be proved i.e. material facts) and facts probantia (the facts by
means of which they are proved i.e. particulars or evidence). It
is settled law that pleadings must contain only facta probanda
and not facta probantia. The material facts on which the party
relies for his claim are called facts probanda and they must be
stated in the pleadings. But the facts or facts by means of which
facta probanda (material facts) are proved and which are in the
nature of facta probantia (particulars or evidence) need not be
set out in the pleadings. They are not facts in issue, but only
relevant facts required to be proved at the trial in order to
establish the fact in issue.”
18.1 The Hon’ble Supreme Court has inter alia laid down that while
a petition that does not disclose material facts can be dismissed,
whereas dismissal on the ground of deficiency or non-disclosure of
particulars of corrupt practice may be justified only if the election
petitioner does not despite an opportunity being given by the Court
provide the particulars and thereby cured the defects. It has been held
that Section 83 mandates an election petition to contain a concise
statement of material facts and fullest possible particulars of corrupt
practice if alleged. The term “material fact” is held to be facts
necessary to formulate a complete cause of action. The Hon’ble
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Supreme Court also reiterated law laid down by the Hon’ble Supreme
in case of Virender Nath Gautam vs. Satpal Singh reported in 2007(3)
SCC 617 wherein the Hon’ble Supreme Court has distinguished
between facta probanda and facta probantia. it is also held that material
facts on which party relied for his claim are called facta probanda and
must be stated in the pleadings. While on the other hands, the facts
by means of which facta probanda are proved and which are in the
nature of facta probantia, need not be set out in the pleadings.
19. At this stage, this Court also seeks to rely upon decision of the
Hon’ble Supreme Court in case of K. Karunanidhi vs. A.
Santhakumar reported in 2023 SCC Online SC 573 wherein the
Hon’ble Supreme Court has inter alia summed up the legal position
insofar as Section 83(1)(a) of the RP Act, 1951, Section 100(1) (d)
(iv) of the RP Act and Order VII Rule 11 (a) of the Code of Civil
Procedure. Paragraph no. 28 of the said decision being relevant for
the present purpose is reproduced hereinbelow for benefit:
“28. The legal position enunciated in afore-stated cases may be
summed up as under:-
i. Section 83(1)(a) of RP Act, 1951 mandates that an Election
petition shall contain a concise statement of material facts on
which the petitioner relies. If material facts are not stated in an
Election petition, the same is liable to be dismissed on that ground
alone, as the case would be covered by Clause (a) of Rule 11 of
Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for
the allegations made in the petition and would constitute the cause
of action, that is every fact which it would be necessary for the
plaintiff/petitioner to prove, if traversed in order to support hisPage 28 of 53
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right to the judgement of court. Omission of a single material fact
would lead to an incomplete cause of action and the statement of
plaint would become bad.
iii. Material facts mean the entire bundle of facts which would
constitute a complete cause of action. Material facts would include
positive statement of facts as also positive averment of a negative
fact, if necessary.
iv. In order to get an election declared as void under Section 100(1)
(d)(iv) of the RP Act, the Election petitioner must aver that on
account of non-compliance with the provisions of the Constitution
or of the Act or any rules or orders made under the Act, the result
of the election, in so far as it concerned the returned candidate, was
materially affected.
v. The Election petition is a serious matter and it cannot be treated
lightly or in a fanciful manner nor is it given to a person who uses it
as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on the
omission of a single material fact leading to an incomplete cause of
action, or omission to contain a concise statement of material facts
on which the petitioner relies for establishing a cause of action, in
exercise of the powers under Clause (a) of Rule 11 of Order VII
CPC read with the mandatory requirements enjoined by Section 83
of the RP Act.
19.1 Considering the law laid down by the Hon’ble Supreme Court
clearly appear to be that under Section 83(1)(a) of the RP Act, 1951,
the election petition should contain a concise statement of material
fact which not stated could result in the election petition being
dismissed on the ground alone as the case would be covered by order
Order VII Rule 11 (a) of the CPC i.e on the ground of lack of cause
of action. All material facts are required to be pleaded, omission of a
single material fact would lead to incomplete cause of action and the
statement of claim would become bad in law. The word “material
facts” have been held to mean the entire bundle of facts which would
constitute complete cause of action. Material facts would include
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positive statement of fact as also positive averment of a negative fact.
It is reiterated that omission of single material fact would lead to
incomplete cause of action leading to summarily dismissal of
election petition under Order VII Rule 11(a) of the Code of Civil
Procedure read with Section 83 of the RP Act, 1951.
20. Having examined the legal conspectus, this Court would now
analyze the election petition from the perspective of the provisions of
RP Act, 1951 and under the provisions of Order VII Rule 11(a)
Code of Civil Procedure, as explained by the Hon’ble Supreme Court
in the decisions as referred to hereinabove. Before entering into the
analysis it would be pertinent to mention that Section 84 of the RP
Act, 1951 inter alia lays down the relief that may be claimed by the
election petitioner. It is laid down by the said Section that a petitioner
in addition to claim a declaration that the election of all or any of the
returned candidate is void, can further claim that he himself or any
other candidate has been duly elected. In the instant case, apart from
seeking a relief to declare the election of the returned candidate i.e.
original respondent no.1 as being void, there are other prayers which
have been sought for, which would not be within the realm of an
election petition. Prayers 7(C), (D), (E) and 7(F) of the petition are
reproduced hereinbelow:
“7 (C) Your Lordships may be pleased to the software on all
EVM machines must be checked in the presence of the
petitioner or his authorized representatives.
7(D) Your Lordships may be pleased to appointment the
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how the EVM provided identical voting percentage in the favour
of ruling party in last 4 Lok Sabha election (i.e. 2014, By-poll
2014, 2019 and 2024.
7(E) Your Lordships may be pleased to Analyses of the Lok
Sabha election results of 2014, by-poll results of 2014, 2019 and
2024, noticed the percentage of votes received by the top-3
( BJP, INC and NOTA) were 98.04%, 98.89 %, 97.79% and
97.57% but total voting percentages were 71%, 47%, 68%, and
62% respectively. Declaring ballot paper voting in select areas of
the Vadodara Lok Sabha is necessary to validate historical results
and voter love for the ruling party. To analyse and evaluate the
percentage of votes obtained by the three most prominent parties
(BJP. INC and NOTA) that receive 98% or higher. Let the ruling
party determine the areas for ballot paper voting.
7(F) Your Lordships may be pleased to order to-election in
the Vadodara 20 Lok Sabha constituency with an approval to
check the software installed in all EVM by the presence of all
candidates or his authorized representatives.”
21. Now considering the averments in the petition from the
perspective of Section 83 (1)(a) of the RP Act, 1951 which requires a
concise statement of the material facts on which the petitioner relies.
Again before delving into the said aspect it would be apposite to refer
to the observations of the Hon’ble Supreme Court in case of Azhar
Hussain vs. Rajiv Gandhi (supra) wherein the Hon’ble Supreme
Court has inter alia referred to material facts being facts which if
established would give the petitioner the relief asked for. It is further
elaborated by observing that the test which is required to be answered
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is whether the Court would have given a verdict in favour of the
election petitioner in case the returned candidate had not appeared to
oppose the election petition.
21.1. A perusal of the memo of the petition reveals that the petition
at paragraph no. 1 and 2 contains certain basic facts and then moves
to paragraph no. 3 under the heading grounds for challenge. The
grounds as it appears, are made relatable to the aspects as found in
Section 100(1)(d)(i) to (iv) of the RP Act, 1951.
21.2. In ground 3.1 which is with regard to improper acceptance of
nomination, it is mentioned that the nomination of the respondent
was improperly accepted despite his disqualification under Section
125(A) of the RP Act, 1951. The petitioner also raises certain
concerns about the affidavit and nomination form filed by
respondent no.1. It is mentioned that while the original respondent
no. 1 mentions his occupation as a Social Worker and his source of
income includes, bank interest, dividend interest, capital gain etc., at
the same time the petitioner seeks to question the income of the
Respondent No.1 but to this Court it would appear the pleadings are
vague, the said paragraph being reproduced for benefit:
3. In the affidavit respondent no.1 highlighted details of his
profession or occupation as a social worker. His Source of income
includes bank interest, dividends, capital gain etc.The total income of
Respondent no.1 for the financial year 2022-23 was Rs. 8,65,550
( Rupees Eight Lakh Sixty Five Thousand Five Hundred Fifty)
while the total movable asset value equals to investment, it will come
to Rs. 348877, not Rs. 865550. There is no information available
about the income of Rs. 516673 for the financial year 2022-23.”
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21.3 The petitioner goes on to state that the original respondent no.
1 has qualification of Bachelor Degree in Physiotherapy from MS
University, Baroda and second degree in Master of Human Resources
Management from the same university. It is alleged that the prefix
‘Doctor’ is added in the nomination application form but there is no
reference about the same in the affidavit.” It is stated that while the
name approved by the ECI had the prefix , and the banner posted by
ruling party also stated the name with the prefix, yet, it is mentioned
that the Indian Medical Association has laid down on 23.06.2024 that
Physiotherapist cannot use the prefix “Dr.”. The later portion of the
said paragraph is reproduced hereinbelow for benefit:
“In India has anyone submitted a nomination for any election?
Who is responsible for verifying the candidate’s basic
information? The response from the returning officer at the time
of scrutiny of the nomination forms that they need to check all
fields are filled or not, the correctness of the information is not
required to check. I am certain that the information is presented in
a misleading manner to the voters of Vadodara Lak Sabha”.
21.4 Considering the averments it would appear that at the first
instance, the petitioner states about the respondent no. 1 being
disqualified under Section 125(A) of the RP Act , 1951 which lays down
a penalty for filing a false affidavit. It does not appear anywhere that any
penalty has been imposed upon respondent no. 1 under Section 125(A).
The later averment as regards return on investment etc., clearly appears
to be some kind of assumption of the petitioner, and whereas to this
Court, it appears that the allegation itself is unfathomable, since while
the petitioner talks about return on investment, there is no mention
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what is the investment that has been mentioned by the petitioner. Thus
the averments are as vague as they can be.
21.5. Insofar as the second part is concerned, it appears that while
the petitioner is trying to raise a grievance as regards the original
respondent no. 1 using the word “Doctor” as prefix, there does not
appear to be any legal basis for the petitioner to have raised the
grievance since the only averment in support of such a grievance is
some instruction by the Indian Medical Association that
Physiotherapist cannot use the prefix “Doctor”. Pertinently, the
instructions are dated 3.06.2024 that is after the date of election which
was held on 07.05.2024. Again the legal sanctity of an organization
which appears to be an association to issue legally enforceable
guidelines, is also not stated. Thus, it would appear on this aspect also
that the averments are completely vague, not containing any statement
of material facts as required. Furthermore, when such a serious
allegation i.e. of filing of false affidavit is being made in an election
petition, material particular, should to this Court include appropriate
details of the legal bar against a person having the qualification like the
returned candidate using the prefix “Doctor”. In absence of any legal
mandate, which is part of the pleadings bold averments as regards the
original respondent no.1 having used the prefix ‘ Doctor’ wrongly,
would not be an averment which would fall under the category of
material statement of facts.
21.6 Again a closure perusal of the paragraph also reveals
ambiguous averment inasmuch the petitioner does not state very clearly
that original respondent no. 1 has wrongly added the prefix “Doctor”
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or has filed a misleading affidavit etc. What is stated is that in the
nomination form prefix “Doctor” is used while no reference with
regard to the same in the affidavit. The ultimate averment in the
paragraph highlighted above, also is an indicator that the averments
cannot be relatable to the term material statement of facts at all.
22. The second ground i.e ground 3.2 is with regard to non
compliance of Rules. In this regard it is averred in the petition that the
petitioner on 19.04.2024 had a discussion with the representative
appointed by the Election Commission of India at around 11.15 AM
about total number of individuals including candidate allowed at the
time of filling up of nomination forms to contest the elections and
whereas the Election Commission of India representative had stated
that only five people including the candidate should be present. It is
stated that original respondent no. 1 had resubmitted nominations on
19.04.2024 at 2.00 p.m. with less than five individuals and the allegation
being that the information about maximum five persons along with the
candidate being disclosed to the candidate of the ruling political party.
It is averred “is it possible to get the detailed mobile bill of each
member present in the Collector’s office on 19.04.2024 to prove that
team working for the Election Commission of India is not following
the Election Commission of India guidelines”. It is also stated that the
petitioner had communicated his concern vide an E-mail dated
20.04.2024 but has not received any response.
22.1 It is further averred that on 20.04.2024 an e-mail was sent (by
the petitioner) titled ‘changes are required in the election process to
ensure an equal playing field for all candidates’ and whereas it is alleged
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that the petitioner has not received any acknowledgment or response
with regard to the same.
22.2 It is further averred that the returning officer had held a
meeting to address concerns of all candidates on 24.04.2024 where the
petitioner had raised questions about installing software on EVM
systems and whereas the ECI team had rejected the demand of the
petitioner without giving any satisfactory answer and though the
petitioner had written an e-mail to the Election Commission of India
with the subject “to change the ECI staff of 20- Vadodara
constituency and guarantee that all candidates receive equal treatment
from the ECI team”, highlighting alleged discrimination with
independent candidate and highlighting the alleged action of the
Returning Officer not inviting all candidates at the time of installation
of software in EVM to which the petitioner has not received any
response.
22.3 Having perused the averments in the said paragraph, to this
Court it would clearly appear that none of the averments would qualify
as material statement of facts. As noted hereinabove an election
petition can contain two different prayers namely declaring that
election of the returned candidate as void and a further declaration that
the petitioner himself or any other candidate has been duly elected.
The RP Act, 1951 does not contemplate any other prayers i.e prayers
in the nature as prayed for in prayer 7 ( C ) to prayer 7 (F). Thus it
would clearly appear that the averments in the above discussed
paragraph could not be in any manner whatsoever relatable to the
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prayer for seeking to declare the election of returned candidate i.e. the
original respondent no. 1 as void. The fact of the returned candidate
coming to fill his nomination with less than five individuals on the
same day when the ECI representative, had clarified the same and a
request for calling for the mobile details of each number of the
Collector’s office for finding out as to who was not working as per the
ECI guidelines, could by no stretch of imagination be treated as a
ground on which the election of the original respondent no. 1 could
be declared as void. As regards the petitioner not getting response to
the e-mails he had sent to the Election Commission of India, also
could in no manner be treated as a ground for declaring the election of
the original respondent no. 1 as being void.
22.4 Further as noted hereinabove, while the petitioner has tried to
co-relate the grounds raised by him, as per the grounds mentioned in
Section 100(1) (d) (i) to (iv) of the RP Act, 1951, and whereas while the
heading of the ground is non compliance of Rules yet, there is no Rule
or for that matter any section or order quoted therein and violation of
which is claimed, more particularly the aspect of such violation
materially affecting the elections not being mentioned at all.
22.5. Ground 3.3 is with regard to the violation of model code of
conduct and the averment is with regard to voters being permitted to
vote using photograph of Aadhar Card on mobile phone and whereas
it is alleged by the petitioner that he could stop a particular voter from
voting since the voter did not have a hardcopy of Identity card yet, on
07.05.2024 the petitioner had complained to the returning officer and
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the ECI Team as regards violation of model code of conduct but the
petitioner has not received any acknowledgment thereof.
23. To this Court as observed hereinabove, the said ground
cannot be relatable to the prayer that the election of the returned
candidate i.e original respondent no. 1 herein should be declared as
void and hence there is no material statement of facts found in the
said paragraph.
23.1. Insofar as paragraph no. 3.4 the same is under the title ‘illegal
practices’ and whereas it is mentioned in the said paragraph that ‘the
respondents indulged in corrupt practices as defined under Section
123 of the RP Act, 1951.’ The allegation being that total voting
percentage in favour of the top three candidates namely candidates of
the BJP, INC and in favour of NOTA were almost the same in
elections held in the year 2014, by-polls of the year 2014, 2019 and
2024 but the vote share received by the candidate of the ruling party
was almost the same. It is also alleged that while number of
candidates increased or decreased but the total vote percentage
received by the above three were almost the same and whereas the
petitioner had raised a grievance to the ECI but no response has
been received till date.
23.2 It is further alleged that there is no change in ranking of
candidates during counting i.e. according to the petitioner votes
polled for NOTA ranked 3rd, while votes polled by the BSP candidate
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was 4th from beginning to end. An allegation with regard to battery
percentage in the EVMs is also raised and whereas it is further stated
that the petitioner had submitted an e-mail to the ECI, as regards the
same. With regard to the above, it requires mention that Section 123
of the RP Act, 1951 inter alia lays down certain acts that is deemed to
be corrupt practice namely
(1) bribery;
(2) undue influence both direct and indirect;
(3) appeal by candidate or his agent or by any other person with
consent of a candidate or his election agent to vote or refrain from
voting on the ground of religion, race, caste, community or language
etc.
3(A) Promotion of, or attempt to promote, feelings of enmity or
hatred between different classes of the citizens of India on ground of
religion, race, caste, community or language.
3(B) propagation of practice or commission of sati
4. publication by a candidate or his agent or by any other person
of any statement of fact which is false,
5. Hiring or procuring, on payment or otherwise, vehicle for
conveyance of any elector to or from any police station.
6. Incurring of unauthorized expenditure.
7. Procuring or to attempt to procure assistance of Government
Servants or persons mentioned in the said sub-section and
(8) Booth capturing.
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23.3. The corrupt practices mentioned in Section 123 of the RP Act
1951, is elaborately reproduced hereinabove to highlight that the
averments in the above paragraph except for using the word corrupt
practices, does not mention any of the acts as relatable to Section 123
of the RP Act having been committed by the returned candidate i.e
the original respondent no.1 or his election agent or by any other
person with the consent of the candidate or his election agent.
23.4 Again what is mentioned is the voting percentage and voting
share as well as ranking of candidates not changing during the entire
counting and with regard to the battery percentage of EVMs. As
observed by this Court hereinabove, neither the averments could be
co-related with any corrupt practice as envisaged under Section 123
of the Act 1951 nor could any of the averments be relatable to the
prayer that the election of the returned candidate be set aside. As
such, the entire averments in the said paragraph, does not contain a
single allegation of wrong doing by the returned candidate. Thus it
would clearly appear that the averments are not in tune with the
requirements of Section 83 (1)(a) of there being material statement of
facts to be mentioned in the election petition.
24. Paragraph No. 3.5 states about violation of Constitutional
rights and whereas it is alleged that the petitioner had been
discriminated by the ECI even though the ECI was required to
consider all candidates equally. It is averred that Article 21 of the
Constitution of India inter alia safeguards the Right to Life and
Personal Liberty emphasizing dignity and fairness in legal procedure
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has been violated by the ECI. It is alleged that representative of
National Political Parties were given extra attention while other
candidates particularly independent candidates without political
affiliation or background were treated badly. It is alleged that there is
no system whereby an independent candidate gets information
including information required to file an election nomination etc.
24.1 In this regard, this Court seeks to rely upon the observations
of the Hon’ble Supreme Court in case of Karim Uddin Barbhuiya vs.
Aminul Haque Laksar reported in 2024 SCC Online SC 504 wherein
the Hon’ble Supreme Court has held that right to contest election or
to question election by means of an election petition is neither
common law right nor fundamental right and whereas it is a statutory
right governed by statutory provisions of the RP Act, 1951. It is also
clarified that outside the statutory provisions, there is no right to
dispute an election. Keeping the above observation in mind it would
appear that averments of the that Right to fight election is a
constitutional right and whereas Article 21 inter alia safeguards the
Right to fairness in legal procedure, insofar as Elections are
concerned, may not be correct legal portion.
24.2 Be that as it may, it would appear as noted above, that the
averments in the said paragraph cannot be corelated in any manner
whatsoever with regard to the prayer for declaring the election of the
returned candidate as void i.e. they are not material facts. While the
petitioner has raised allegations against the ECI, yet, the present
election petition would not be the right forum to agitate or to
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adjudicate the same more particularly in absence of even a passing
averment that the returned candidate was in some manner responsible
for the alleged plight of the petitioner. In the considered opinion of
this Court averments in the said paragraph not being relatable to the
to the prayer for declaring the election of the returned candidate as
void, the averments in the said paragraph could not be treated as
material statement of facts.
24.3 Considering the above discussion, it would clearly appear that
the petition does not contain a concise statement of material facts i.e.
the entire bundle of facts which would constitute a complete cause of
action. Perusal of the discussion as regards the averments made in the
petition would also lead to an inevitable conclusion that the petition
does not disclose any cause of action at all.
25. Insofar as the submission of the party-in-person relying upon
decision of the Hon’ble Supreme Court in case of Ashraf Kokkur
(supra), it would appear that the Hon’ble Supreme Court was inter alia
held that while considering an application under Order VII Rule 11A,
the inquiry which the Court is required to conduct is the facts pleaded
disclosed any cause of action as against a complete cause of action.
While it had been attempted to be submitted by the party-in-person
that the election petition contains a cause of action, from the
elaborate discussion hereinabove, it would clearly appear that the
Election Petition does not reveal any cause of action much at all
much less a complete cause of action. Thus the judgement of the
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Hon’ble Supreme Court, would not advance the cause of the
petitioner party-in-person any further.
25.1 Furthermore the party-in-person had also relied upon decision
of Hon’ble Supreme Court in case of K.K. Ramchandran Master vs.
M.V.Sreyamskumar & Ors. reported in 2010 (7) SCC 428 and whereas
the Hon’ble Supreme Court has inter alia observed that while a
petition that does not disclose material facts can be dismissed as one
that does not disclose a cause of action, dismissal on the ground of
deficiency or non disclosure of particulars of corrupt practice may be
justified only if the election petitioner does not, despite an
opportunity given by the Court provides the particular and thereby
cure the defects. In this regard it requires to be noted that at ground
no. 3.4 of the election petition, the party-in-person has mentioned
about the alleged corrupt practices indulged by ‘the respondents.’ As
elaborately discussed hereinabove, while the corrupt practices, are not
relatable to the respondent no.1, it also would appear that the corrupt
practices alleged are not the corrupt practices as defined under
Section 123 of the RP Act. It would thus appear to this Court that
while an opportunity ought to have been given to the petitioner of an
election petition to cure deficiency in providing the material particular
with regard to corrupt practice, yet in the instant case, since none of
the corrupt practices alleged are as corelatable with the corrupt
practices explained in Section 123, therefore, the requirement of
providing an opportunity ought not to be exercised in the instant
case.
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where the Hon’ble Supreme Court has distinguished between facta
probanda and facta probantia, while it is attempted to be argued that the
petitioner is only required to plead facta probanda (material facts) and
not the facta probantia i.e the facts on basis of which the material facts
are proved, whereas to this Court it would appear as mentioned
elaborately hereinabove that since the petition is completely bereft of
facta probanda -material facts, the law laid down by the Hon’ble
Supreme Court would not in any way advance the cause of the
present petitioner. Hence, the decisions relied upon by the party-in-
person, would not in any way come to the aid of the party-in-person.
26. At this stage this Court seeks to rely upon observation of the
Hon’ble Supreme Court in case of Mayar (H.K.) Ltd. vs. Owners and
Parties Vessel MV. Fortune Express, reported in 2006(3) SCC 100
which has been quoted in the decision of the Hon’ble Supreme Court
in case of Ashraf Kokkur (supra), which has been reproduced
hereinabove. The Hon’ble Supreme Court has stated that the Court
has to read the entire plaint to fine out whether the same discloses a
cause of action. The Hon’ble Supreme Court has further observed
that the aspect of whether the plaint discloses a cause of action is a
question of fact which has to be gathered on basis of averments made
in the plaint in its entirety taking those averments to be correct. The
Hon’ble Supreme Court has further explained that a cause of action is
a bundle of facts which are required to be proved for obtaining relief
and for the said purpose the material facts are required to be stated.
Considered from the above perspective, while the petitioner is entitled
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to seek the relief of declaring the election of returned candidate i.e
original respondent no. 1 as void, none of the averments made in the
petition read as a whole, would constitute the material fact which
even if taken to be correct, would render the prayer of declaration as
noted hereinabove being granted.
26.1 At this stage it would be relevant to mention that in case of
Azhar Hussain (supra) the Hon’ble Supreme Court has inter alia laid
down that the test for ascertaining whether facts are ‘material facts’
would be whether the Election Petition would be allowed in case the
respondent did not appear. To this Court it would appear, applying
the test to the facts of the present case that even if the respondent
had not appeared, the petition based on the pleading/averments made
would not be allowed, since none of the facts pleaded are such that
even if the same is taken as the truth, would result in the election
being materially affected, furthermore, in case of K.K. Ramchandran
Master (supra) and K. Karunanidhi (supra) the Hon’ble Supreme
Court has held that a petition that does not disclose material facts,
would be liable to be dismissed as not raising any cause of action.
26.2 At this stage, it would be apposite to refer to the decision in
case of Karim Uddin Barbhuiya vs. Aminul Haque Laskar and others
(supra), by the Hon’ble Supreme Court. Observations at paragraphs
no. 13, 14, 15, 19 to 24, being relevant for the present purpose are
reproduced hereinbelow for benefit:
“13. It hardly needs to be reiterated that in an Election Petition,
pleadings have to be precise, specific and unambiguous, and if the
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dismissed in limine. It may also be noted that the cause of action in
questioning the validity of election must relate to the grounds
specified in Section 100 of the RP Act. As held in Bhagwati Prasad
Dixit ‘Ghorewala’ vs. Rajeev Gandhi and in Dhartipakar Madan Lal
Agarwal vs. Rajiv Gandhi, if the allegations contained in the petition
do not set out the grounds as contemplated by Section 100 and do
not conform to the requirement of Section 81 and 83 of the Act,
the pleadings are liable to be struck off and the Election Petition is
liable to be rejected under Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan
Nayak vs. Ramratan Chaturvedi and Others be also made, wherein
this Court upon review of the earlier decisions, laid down following
principles applicable to election cases involving corrupt practices: –
“5. This Court in a catena of decisions has laid down the principles
as to the nature of pleadings in election cases, the sum and
substance of which being:
(1) The pleadings of the election petitioner in his petition should be
absolutely precise and clear containing all necessary details and
particulars as required by law vide Dhartipakar Madan Lal Agarwal
v. Rajiv Gandhi [1987 Supp SCC 93] and Kona Prabhakara Rao v.
M. Seshagiri Rao [(1982) 1 SCC 442] .
(2) The allegations in the election petition should not be vague,
general in nature or lacking of materials or frivolous or vexatious
because the court is empowered at any stage of the proceedings to
strike down or delete pleadings which are suffering from such vices
as not raising any triable issue vide Manphul Singh v. Surinder
Singh [(1973) 2 SCC 599: (1974) 1 SCR 52] , Kona Prabhakara Rao
v. M. Seshagiri Rao [(1982) 1 SCC 442] and Dhartipakar Madan Lal
Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] .
(3) The evidence adduced in support of the pleadings should be of
such nature leading to an irresistible conclusion or unimpeachable
result that the allegations made, have been committed rendering the
election void under Section 100 vide Jumuna Prasad Mukhariya v.
Lachhi Ram [(1955) 1 SCR 608: AIR 1954 SC 686] and Rahim Khan
v. Khurshid Ahmed [(1974) 2 SCC 660] .
(4) The evidence produced before the court in support of the
pleadings must be clear, cogent, satisfactory, credible and positive
and also should stand the test of strict and scrupulous scrutiny vide
Ram Sharan Yadav v. Thakur Muneshwar Nath Singh [(1984) 4
SCC 649] .
(5) It is unsafe in an election case to accept oral evidence at its face
value without looking for assurances for some surer circumstances
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or unimpeachable documents vide Rahim Khan v. Khurshid
Ahmed [(1974) 2 SCC 660] , M. Narayana Rao v. G. Venkata
Reddy [(1977) 1 SCC 771: (1977) 1 SCR 490] , Lakshmi Raman
Acharya v. Chandan Singh [(1977) 1 SCC 423: (1977) 2 SCR 412]
and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260] .
(6) The onus of proof of the allegations made in the election
petition is undoubtedly on the person who assails an election which
has been concluded vide Rahim Khan v. Khurshid Ahmed [(1974)
2 SCC 660] , Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12: AIR
1964 SC 1366] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1
SCC 260].”
15. The legal position with regard to the non-compliance of the
requirement of Section 83(1)(a) of the RP Act and the rejection of
Election Petition under Order VII Rule 11, CPC has also been
regurgitated recently by this Court in case of Kanimozhi
Karunanidhi vs. A. Santhana Kumar and Others (supra). Paragraph
no. 28 is reproduced hereinbelow for benefit:
“28. The legal position enunciated in afore-stated cases may be
summed up as under: — i. Section 83(1)(a) of RP Act, 1951
mandates that an Election petition shall contain a concise statement
of material facts on which the petitioner relies. If material facts are
not stated in an Election petition, the same is liable to be dismissed
on that ground alone, as the case would be covered by Clause (a) of
Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for
the allegations made in the petition and would constitute the cause
of action, that is every fact which it would be necessary for the
plaintiff/petitioner to prove, if traversed in order to support his
right to the judgment of court. Omission of a single material fact
would lead to an incomplete cause of action and the statement of
plaint would become bad.
iii. Material facts mean the entire bundle of facts which would
constitute a complete cause of action. Material facts would include
positive statement of facts as also positive averment of a negative
fact, if necessary.
iv. In order to get an election declared as void under Section 100(1)
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(d)(iv) of the RP Act, the Election petitioner must aver that on
account of non-compliance with the provisions of the Constitution
or of the Act or any rules or orders made under the Act, the result
of the election, in so far as it concerned the returned candidate, was
materially affected.
v. The Election petition is a serious matter and it cannot be treated
lightly or in a fanciful manner nor is it given to a person who uses it
as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on the
omission of a single material fact leading to an incomplete cause of
action, or omission to contain a concise statement of material facts
on which the petitioner relies for establishing a cause of action, in
exercise of the powers under Clause (a) of Rule 11 of Order VII
CPC read with the mandatory requirements enjoined by Section 83
of the RP Act.”
19. Now, from the bare reading of the Election petition, it emerges
that the respondent no. 1 has made only bald and vague allegations
in the Election Petition without stating the material facts in support
thereof as required to be stated under Section 83(1)(a) of the RP
Act. Apart from the fact that none of the allegations with regard to
the false statements, and suppression and misrepresentation of
facts allegedly made by the respondent no. 1 with regard to his
educational qualification or with regard to his liability in respect of
the loan availed by him for his partnership firm or with regard to
his default in depositing the employer’s contribution to provident
fund, would fall within the definition of “Corrupt practice” of
“undue influence” as envisaged in Section 123(2) of the RP Act, the
Election petition also lacks concise statement of “material facts” as
contemplated in Section 83(a), and lacks “full particulars” of the
alleged Corrupt practice as contemplated in Section 83(b) of the RP
Act.
20. So far as the allegations of “Corrupt practice” are concerned,
the respondent no. 1 was required to make concise statement of
material facts as to how the appellant had indulged into “Corrupt
practice” of undue influence by directly or indirectly interfering or
attempted to interfere with the free exercise of any electoral right.
Mere bald and vague allegations without any basis would not be
sufficient compliance of the requirement of making a concise
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statement of the “material facts” in the Election Petition. The
material facts which are primary and basic facts have to be pleaded
in support of the case set up by the Election petitioner to show his
cause of action. Any omission of a single material fact would lead
to an incomplete cause of action entitling the returned candidate to
pray for dismissal of Election petition under Order VII Rule 11(a)
of CPC read with Section 83(1)(a) of the RP Act. The said legal
position has been well settled by this Court in Azhar Hussain vs.
Rajiv Gandhi, wherein this Court after referring to the earlier
pronouncements in Samant N. Balkrishna and Another vs. George
Fernandez and Others and Shri Udhav Singh vs. Madhav Rao
Scindia, observed that the omission of a single material fact would
lead to incomplete cause of action, and that an Election petition
without the material facts is not an Election petition at all. It was
further held that all the facts which are essential to clothe the
petition with complete cause of action must be pleaded and
omission of even a single material fact would amount to
disobedience of the mandate of Section 83(1)(a) of the Act and an
Election petition can be and must be dismissed, if it suffers from
any such vice.
21. It is also pertinent to note at this juncture that a charge of
“Corrupt practice” is easy to level but difficult to prove because it is
in the nature of criminal charge and has got to be proved beyond
doubt. The standard of proof required for establishing a charge of
“Corrupt (1986) Supp. SCC 315 (1969) 3 SCC 238 (1977) 1 SCC
511 practice” is the same as is applicable to a criminal charge.
Therefore, Section 83(1)(b) mandates that when the allegation of
“Corrupt practice” is made, the Election Petition shall set forth full
particulars of the corrupt practice that the Election Petitioner
alleges, including as full a statement as possible of the names of
parties alleged to have committed such corrupt practice and the date
and place of the commission of each such practice. The pleadings
with regard to the allegation of corrupt practice have to be precise,
specific and unambiguous whether it is bribery or undue influence
or other corrupt practices as stated in Section 123 of the Act. If it is
corrupt practice in the nature of undue influence, the pleadings
must state the full particulars with regard to the direct or indirect
interference or attempt to interfere by the candidate, with the free
exercise of any electoral right as stated in Section 123(2) of the Act.
We are afraid, Mr. Gupta has failed to point out from the pleadings
of the Election petition as to how the appellant had interfered or
attempted to interfere with the free exercise of any electoral right so
as to constitute “undue influence” under Section 123(2) of the Act.
22. So far as the ground contained in clause (d) of Section 100(1) of
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the Act, with regard to improper acceptance of the nomination of
the Appellant is concerned, there is not a single averment made in
the Election Petition as to how the result of the election, in so far as
the appellant was concerned, was materially affected by improper
acceptance of his nomination, so as to constitute a cause of action
under Section 100(1)(d)(i) of the Act. Though it is true that the
Election Petitioner is not required to state as to how corrupt practice
had materially affected the result of the election, nonetheless it is
mandatory to state when the clause (d)(i) of Section 100(1) is
invoked as to how the result of election was materially affected by
improper acceptance of the nomination form of the Appellant.
23. As transpiring from the Election Petition, the respondent no. 1
himself had not raised any objection in writing against the
nomination filed by the Appellant, at the time of scrutiny made by
the Returning Officer under Section 36 of the Act. According to
him, he had raised oral objection with regard to the education
qualification stated by the Appellant in the Affidavit in Form-26. If
he could make oral objection, he could as well, have made objection
in writing against the acceptance of nomination of the Appellant,
and in that case the Returning Officer would have decided his
objection under sub-section (2) of Section 36, after holding a
summary inquiry. Even if it is accepted that he had raised an oral
objection with regard to the educational qualification of the
Appellant before the Returning Officer at the time of scrutiny, the
respondent no. 1 has failed to make averment in the Election
Petition as to how Appellant’s nomination was liable to be rejected
by the Returning Officer on the grounds mentioned in Section 36(2)
of the Act, so as to make his case fall under clause (d)(i) of Section
100(1) that there was improper acceptance of the nomination of the
Appellant. The non-mentioning of the particulars as to how such
improper acceptance of nomination had materially affected the
result of the election, is apparent on the face of the Election
Petition.
24. As stated earlier, in Election Petition, the pleadings have to be
precise, specific and unambiguous. If the allegations contained in
Election Petition do not set out grounds as contemplated in Section
100 and do not conform to the requirement of Section 81 and 83 of
the Act, the Election Petition is liable to be rejected under Order
VII, Rule 11 of CPC. An omission of a single material fact leading to
an incomplete cause of action or omission to contain a concise
statement of material facts on which the Election petitioner relies for
establishing a cause of action, would entail rejection of Election
Petition under Order VII Rule 11 read with Section 83 and 87 of the
RP Act.”
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26.3 The Hon’ble Supreme Court in the above quoted portion has
inter alia held that pleadings in an election petition, have to be
precise, specific and unambiguous. That if an election petition does
not disclose a cause of action it is liable to be dismissed in limine.
That the cause of action in an election petition must relate to the
grounds specified in Section 100 of the RP Act and if the allegations
do not set out the grounds as contemplated under Section 100 and
also do not confirm to requirement of Sections 81 and 83 then the
election petition is liable to be rejected under Order 7 Rule 11 of
CPC. The Hon’ble Supreme Court has further observed that insofar
as allegation of corrupt practice are concerned, the election petition
should contain concise statement of material facts as to how the
returned candidate had indulged in corrupt practice. All material facts
which are primary and basic facts have to be pleaded in support of
the case of the election petitioner to make a cause of action and
omission of a single material fact would lead to an incomplete cause
of action entitling the returned candidate to pray for dismissal of
election petition under Order VII Rule 11(a) of the Code of Civil
Procedure read with Section 83(1) (a) of the RP Act. It is also
observed that Section 83(i) (d) mandates that when an allegation of
corrupt practice is made election petition shall contain full particulars
of the corrupt practice as well as statement of parties alleged to have
indulged in corrupt practice and the date and place of commission of
such practice. Pertinently it is specifically laid down that pleadings
with regard to allegation of corrupt practice have to be precise,
specific and unambiguous as to the nature of corrupt practice as
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stated in Section 123 of the Act. It is further observed that while it
may not be required by the election petitioner to state as to how
corrupt practice had materially effected the result of the election,
nonetheless upon invoking of Section 100 (1)(d) (i), it is mandatory to
state how election was materially effected.
26.4 Now considering the pleadings of the present case, as
elaborately discussed hereinabove, it would clearly appear that the
Election Petition suffers from the following flaws:
(a) The Election Petition not setting out grounds as contemplated
under Section 100 of the RP Act. While the heading of each of the
ground at paragraph no. 3 would correspond with the grounds under
Section 100, yet the body of the grounds can not in any manner be
correlated either to the heading of the said sub-ground or with the
grounds as set out in Section 100 of the R.P. Act.
(b) The Election Petition not confirming to the requirement of
Section 83, more particularly Section 83(1)(a) and (b), i.e not
containing concise statement of material facts and not containing full
particulars of the corrupt practices alleged.
(c) The Election Petition does not set out any material facts
whatsoever.
(d) The allegation of corrupt practice not co-relatable to the
explanation of corrupt practice as laid down in Section 123 of the
R.P. Act.
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(e) The petition stating vague grounds .
(f) Most importantly the petition not disclosing any cause of
action.
27. Having regard to the aforesaid discussion, observations and
conclusions, more particularly the conclusion in the previous
paragraph, it would appear that the Election petition does not set out
material facts for establishing a cause of action, the Election Petition
does not set out grounds as contemplated under Section 100 of the
R.P. Act and thus as per the law laid down by the Hon’ble Supreme
Court in the judgements referred to hereinabove, more particularly
the judgement in case of Karim Uddin Barbhuiya (supra) the Election
petition is liable to be rejected under Order VII Rule 11 of the Code
of Civil Procedure, read with Section 83 of the R.P. Act.
Consequently the application preferred by the respondent no. 1
returned candidate is allowed, the Election Petition is rejected in
limine. Connected application stand disposed of in view of the above
order.
(NIKHIL S. KARIEL,J)
NIRU
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