Abraham T J vs Ashok Kheny on 7 December, 2016

[Cites 35, Cited by 0]

Karnataka High Court

Abraham T J vs Ashok Kheny on 7 December, 2016

Equivalent citations: AIR 2017 (NOC) 611 (KAR.), 2017 (1) AKR 618 (2017) 3 KCCR 2062, (2017) 3 KCCR 2062

Bench: L. Narayana Swamy

                            1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF DECEMBER, 2016

                          BEFORE

        THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY

             ELECTION PETITION NO.12 OF 2013

BETWEEN:

ABRAHAM T.J.
AGED ABOUT 52 YEARS,
S/O JOSEPH T.A.,
NO.2457, 16TH 'B' MAIN,
H.A.L., 2ND STAGE,
BANGALORE - 560 008.                     ... PETITIONER

(BY SRI.ABRAHAM T.J., PARTY-IN-PERSON)

AND:

ASHOK KHENY,
S/O MAHARUDRAPPA,
RESIDING AT NO.2-45
RANJOL KHENY,
BIDAR TALUK, BIDAR DISTRICT.

ALSO AT:

M/S NANDI INFRASTRUCTURE
CORRIDOR ENTERPRISES LIMITED,
NO.1, MIDFORD HOUSE,
MIDFORD GARDENS, OFF M.G.ROAD,
BANGALORE - 560001                  ... RESPONDENT

(BY SRI.S.M.CHANDRASHEKAR, SENIOR COUNSEL FOR SRI.GIRISH G.N, AND S.B.MATHAPATHI, ADVS.) 2 THE ELECTION PETITION IS FILED UNDER SECTION 81 READ WITH SECTIONS 100(1) (A) (D) (I) & (IV), 33 (4) & (5), 33-A 36, 5(C) & 9-A OF THE REPRESENTATION OF PEOPLE'S ACT, 1951 AND ARTICLES 9 AND 173 OF THE CONSTITUTION OF INDIA, BY ONE SRI.ABRAHAM T.J., PETITIONER: CANDIDATE (PARTY-IN-PERSON), CHALLENGING OF ELECTION OF THE RESPONDENT, SRI.ASHOK KHENY TO THE KARNATAKA LEGISLATURE FROM NO.49, BIDAR (SOUTH) ASSEMBLY CONSTITUENCY, GENERAL ELECTIONS HELD IN THE YEAR 2013, PRAYING TO ADJUDGE AND DECLARE THAT THE CONTEST OF SRI.ASHOK KHENY, RESPONDENT, IS ILLEGAL AND TO THEREBY SET ASIDE HIS ELECTION AS BEING ILLEGAL, VOID AND OF NO EFFECT AND ETC.,.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 22.08.2016 ON I A No.IV/2013 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R ON I A No.IV/2013 This Election Petition is filed by one of the defeated candidates under Section 81 read with Section 100(1)(a)(d) and

(iv), 33(4) & (5) 33-A, 36, 5(c) & 9-A of the Representation of Peoples Act,1951 and Articles 9 & 173 of the Constitution of India.

2. The case of the petitioner in brief is that election relates to 49-Bidar South Assembly Constituency. The respondent 3 having voluntarily accepted the citizenship of United States, he is not a citizen of India and that the respondent having undertaken the work on behalf or for the Government of Karnataka, the respondent is not entitled but disqualified to contest the election in view of the provisions under Articles 9 & 173 of the Constitution of India and Section 9-A of the Representation of Peoples Act, 1951, hereinafter referred to as `the Act' for short. It is stated acceptance of nomination of the respondent is improper and that has materially affected the election results of the petitioner. It is the case of the petitioner that since the respondent has not denied the averment relating to his voluntarily accepting the citizenship of U.S. it is to be presumed that he is not a citizen of India. It is contended that the business relations of the respondent in USA establishes the fact that the respondent has voluntarily accepted the citizenship of USA. The respondent had not specifically denied and willfully refused to clarify the allegation attracting his disqualification to contest elections by reason of entering into acontract with the Government of Karnataka attracting disqualification under Section 9A of the Act as he is the Managing Director of 4 M/s.Nandi Infrastructure Corridor Enterprises Limited(NICE and also holding shares in M/s.NICE Ltd., which has contracted with the Government of Karnataka to undertake construction of Bangalore-Mysore expressway. The respondent has wrongly sworn to an affidavit that he is a voter at Serial No.673 in Part No.78 of the Electoral roll of Bidar South Assembly Constituency. Thus the respondent had earned disqualification under Section 5-C of the Act. Thus the petitioner prayed for declaring the election of the respondent as void under Section 100(1)(d)(i) and (iv) of the Act.

3. The respondent has filed written statement inter alia contending that there is no cause of action to file the petition. The petition is not in compliance with the mandatory provisions of the Act and the Code of Civil Procedure. That the issue raised in the petition that the respondent is not qualified to hold office to which he is elected since he is not a citizen of India, such an issue cannot be a ground for disqualification in an election petition. The petitioner has failed to prove that (i) the State Government is a Equity Holder in the "NICE" Company; ;and (ii) 5 Moreover the respondent as an individual in any manner has been awarded with any such contracts so as to attract section 9A of the Act. The respondent is not having a subsisting contract with the State Government for supply of goods to/execution of works undertaken by that Government. The issue, respondent not even an elector in the Bidar South Assembly Constituency, cannot be a ground of seeking disqualification of the election of the candidate vide the current election petition. The respondent does not suffer any disqualification having regard to the scope of intent of Section 9A of the Act. The result of the election in so far as the respondent is concerned is not materially affected. It is submitted that the proceedings before the Returning Officer, at the stage of scrutiny of nominations under Section 36 of the Act, contemplate a summary enquiry. This is categorical from the face of the provision itself. Therefore, it is submitted that the petitioner's reliance on Order VIII Rule 3 of the CPC and the alleged non-compliance therewith resulting in improper acceptance of the nomination of the respondent is totally misconceived. Thus the respondent prayed for dismissal of the election petition.

4. The respondent filed two applications in the meanwhile IA No.4/2013 under Order VI Rule 16(a) and (c) of the Code of Civil Procedure, 1908 to strike off the pleadings contained in paragraphs 5, 7, 8, 9, 9(a) to (d), 10, 14, 16, 16(a) to (h), 17, 18 and 19 as the same are scandalous, unnecessary, frivolous and vexatious and I A No.6/2013 under Order VII Rules 11(a) and (d) r/w Section 151 of Code of Civil Procedure, 1908 praying to reject the petition on the grounds of non-disclosure of cause of action and barred by law.

5. Both the applications I A No.IV/2013 and IA No.VI/2013 were directed to be listed for hearing on 24.10.2013. On 24.10.2013 the same were adjourned to 18.01.2014. However, on 18.1.2014 only IA No.VI/2013 was heard and came to be disposed of by the coordinate bench, rejecting the said application filed under Order VII Rule 11 CPC, by the order dated 8.4.2014.

6. This Court in the order dated 8.4.2014 examined existence or otherwise of the cause of action in the petition and 7 whether the petition is barred by time. In so far as the defects in mentioning the provisions of law and also the defects in verifying the affidavit and corrections being not attested etc., relying upon the decision in Ponnala Lakshmaiah vs., Kommuri Pratap Reddy, 2012(7) SCC 788 where the Apex Court referring to its earlier decision in the case of H.D. Revanna vs., G Puttaswamy and others, 1999(2) SCC 217 observed that an election petition can be dismissed for non-compliance of Section 81, 82 and 117ofthe Act but it may also be dismissed if the matter falls even under Order 6 Rule 16 or Order 7 Rule 11 CPC and a defect in the verification of the election petition or affidavit accompanying the election petition is held to be curable and hence not sufficient to justify dismissal of the election petition.

7. It is further pointed out by this Court that under clause

(a) of Rule 11 of Order 7 the plaint can be rejected where it does not disclose a cause of action and as per clause (d) a plaint can be rejected where from the statement in the plaint or the suit appears to be barred by any law. The election petition was presented on 22.6.2013. Relying upon decision of the Hon'ble 8 Supreme Court in Tarun Prasad Chaterjee Vs., Dinanath Sharma,2000(8) SCC 649, excluding the date on which the election result was declared i.e., 8.5.2013, it was held that the petition presented on 22.6.2013 was within the period of limitation of 45 days as is prescribed under Section 81 of the Act.

8. As regards the cause of action, this Court relied upon Para-3 of the judgment in Ponnala Lakshmaiah's case referred to supra, which is extracted herein below for the sake of convenience:

3...."The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to 9 prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished form every piece of evidence, which is necessary, to prove each fact comprises in "cause of action".

9. This court also took into consideration, Para-6 of the said judgment, the relevant portion of which is to the following effect:

"6....Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed."

10. This court also observed the observations made inPara-9 of the judgment, the relevant portion of which is extracted as herein under:

"9...Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action 10 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."

11. In that pragmatic view of the matter and the limited scope the court had while considering the said application under Order VII Rule 11 CPC, the court found no substance in the contention raised in the application filed under Order VII Rule 11 of CPC on the ground of "no cause of action" and opined that "material facts" are averred in the petition and election petition cannot be dismissed at the threshold either on the ground that there is no `cause of action' or that petition is barred by time.

12. After disposal of IA No.6/2013, the election petition was entrusted to this court by special orders as my learned brother Mr.Justice K N Keshavanarayana, retired after attaining the age of superannuation.

13. Be that as it may, now this court is concerned with I A No.IV/2013. IA No.IV/2013 was disposed of by the order dated 11 05.09.2014 allowing the application and consequently rejecting the election petition itself.

14. The matter was carried to the Hon'ble Supreme Court by the petitioner herein and the Hon'ble Supreme Court by the order dated 19.07.2016 in Civil Appeal No.6588/2016 allowed the appeal, set aside the order dated5.9.2014 and remanded for adjudication on merits with an observation that reconsideration is to be done by taking into consideration the order dated 8.4.2014 passed by the High Court.

15. Accordingly, by the order dated 17.8.2016 election petition was restored to file and IA No.IV/2013 was re-heard.

16. I A No.IV of 2013 was filed by the respondent under Order VI Rule 16(a) and (c) of the Code of Civil Procedure, 1908 to strike off the pleadings contained in paragraphs 5, 7, 8, 9(a) to (d), 10, 14, 16, 16(a) to (h), 17, 18 and 19 as the same are scandalous, unnecessary, frivolous and vexatious and is otherwise an abuse of process of the court and also its pride. 12

17. I have heard the learned Senior Counsel for the Respondent and petitioner party-in-person.

18. The learned Senior Counsel submits that the pleadings do not contain material facts with regard to the alleged voluntarily acquisition or acceptance of US citizenship. The pleadings also do not contain any material with regard to alleged contract with Government of Karnataka said to have been entered into by the respondent for the purpose of supply of goods or for execution of any work of the Government as required under Section 9A of the Act. The petitioner ought to have shown that there is any provision in our law which provides that a person would automatically lose his Indian citizenship on his marriage with a person who is a citizen of a foreign country or by acquiring, even if true, property in a foreign country. In this regard, the learned Senior Counsel relied upon decision in Bhagavathi Prasad Dixit Ghorewala vs., Rajiv Gandhi, AIR 1986 SC 1534 Paras 13 & 16.

19. It is submitted that the valuable verdict of the people at the polls must be given due respect and candour and should 13 not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. In this regard, decision in D Venkata Reddy vs., R Sultan & others, AIR 1976 SC 1599 Paras 3& 4 are relied upon.

20. The learned senior counsel relying upon AIR 1975 SC 290 Para-9 (Rahim Khan v. Khurshid Ahamed) submits that an election once held is not to be treated in a light hearted manner and defeated candidates are disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate.

21. Referring to Order 6 Rule 16 CPC, the learned Senior counsel submits that at any stage of the proceedings court can order to be struck out or amend any matter in any pleading, which may be unnecessary, scandalous, frivolous or vexatious, which may tend to prejudice, embarrass or delay the fair trial of 14 the suit or which is otherwise an abuse of the process of the court.

22. The learned Senior Counsel has relied upon decision in Dhartipakar Madan Lal Agarwal Vs., Shri Rajiv Gandhi, AIR 1987 SC 1577 and submits that if the election petition fails to make out a ground under Section 100 of the Act, it must fail at the threshold. The emphasis of law is to avoid a fishing and roving inquiry.

23. Relying upon decision in V. Narayanaswamy vs., C P Thirunavukkarasu, (2000) 2 SCC 294 Para-23, the learned Senior counsel advanced the submission that non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure.

24. It is submitted that the petitioner has resorted to roving enquiry without placing on record his defence on each of the allegations. Filing o IA No.1/2014 by the petitioner to produce documents and to file an affidavit is indicative of the 15 fact that he has no personal knowledge and has no certainty about the allegations made in the petition. Decision in Basanagouda vs., Amarkhed, (1992) 2 SCC 612 is relied upon to advance a contention that the election petition proceedings is a quasi-criminal nature. The allegations in the petition must be pleaded clearly and with full particulars, especially the grounds of corrupt practices cannot be permitted to be tried on the basis of deficient pleadings or by filing applications for production of record to fish out grounds as material which is not part of the pleadings. The contentions of the petitioner lack material particulars and the allegations are bald without specific materials.

25. It is submitted that the requirement of law is that the pleadings in the petition should state that acceptance of respondent's nomination has prejudicially affected the petitioner's prospects in the election. The 2nd highest votes were secured by one Bandeppa Kashampur with 31975 votes, whereas the petitioner could secure only 846 votes. The petitioner has not pleaded in what way or how declaration of 16 result or acceptance of nomination has been materially affected. On this ground, the pleadings in the petition are liable to be struck off.

26. It is further submitted that the matter relating to citizenship cannot be construed as pure and simple civil litigation and deprive the constitutional right of a citizen by declaring that he is not an Indian citizen by erroneous presumption that non- denial of allegation amounts to acceptance of US citizenship. The petitioner is under a misconception of law that the President or Director of a company registered in the United States of America requires that he should be a citizen, which is frivolous and vexatious. The respondent relies upon Indian Passport, PAN Card, entry in the voters list and Voters ID to substantiate that he is an Indian Citizen.

27. It is also submitted, no doubt the decision in Hari Shannkar Jain vs., Sonia Gandhi (2001) 8 SCC 233 Para-20 provides, challenge based on factual matrix given in the petition can be tried in an election petition but in the absence of such a 17 factual matrix, the averments would be merely bald or vague allegations.

28. It is submitted, the respondent has placed on record non compliance of mandatory requirement under Section 83 Order 6 Rule 2 and 4 and Section 100(1)(d) of the Act. Therefore, this Court exercising power under Section 86 and 98A of the Act strike off pleadings and for non-compliance of requirement under Section 83 and 100 of the Act and in such a situation, the election tribunal has power to reject the election petition even before the trial u/s 86 of the Act notwithstanding the power under Order 7 Rule 11 CPC.

29. Lastly it is submitted, the parameters for consideration of applications filed under Order 6 Rule 16 and Order 7 Rule 11 are different. The earlier order dated 8.4.2014 only considered the basis for cause of action and has not considered whether allegations are frivolous, vexatious or scandalous or abuse of process of the Court. Hence the learned Senior Counsel submits that the pleadings sought to be struck off are frivolous, vexatious and scandalous liable to be struck off and 18 consequently nothing remains in the election petition, liable to be rejected.

30. On the other hand, the petitioner party-in-person submits that aspect whether the matter is vexatious, scandalous or frivolous has been already addressed and settled by this Court in the order dated 8.4.2014 stating that there was cause of action to try all the issues raised by the petitioner. Further he drew the attention of the Court that contentions and grounds raised in IA No.6/2013 and IA No.4/2016 are similar, this Court is required to record reasons to take a different view. It is submitted, he has pleaded "material facts" and material particulars could be supplied at the time of evidence. It is submitted that the paragraphs which are sought to be struck off are held to have disclosed the cause of action to try the election petition in the earlier order, they cannot be struck off. With regard to "material Facts" and "material particulars" the petitioner has placed reliance on decisions in Anil Vasudev Salgaonkar vs., Naresh Kushali Shigaonkar (2009) 9 SCC 310, (2009) 10 JT 684, Bimlingshu Roy vs., Kamaalendu 19 Bhattacharjee AIR 2004 GUW 107 and D Ramachandran vs., R V Janakiraman & others (1999) 3 SCC 267, AIR 1999 SC 1128.

31. The petitioner has relied upon decision in Sri Ramu vs., Sunil Vallapure & others ILR (2005) Kar. 2823 to advance the contention as to relevant pleadings and material facts. Thus he prays for rejection of the application I A No.4/2013.

32. On the basis of the rival contentions, the point that arises for consideration is, whether the application filed under Order VI Rule 16 CPC is entitled to be allowed? My answer would be in the affirmative for the following reasons.

33. First of all it is to be mentioned here that both the applications ought to have been considered together, but because of the above reason, it could not happen and that is how I A No.4/2013 was/is to be disposed of by a separate order.

34. From the contentions advanced on both sides and the principles enunciated in the various decisions referred to above, the parameters of the application filed under Order VII Rule 11 and application filed under Order VI Rule 16 of CPC are different. 20 Disposal of IA filed under Order VII Rule 11 CPC would not come in the way of disposing of the application filed under Order VI Rule 16 CPC. It is at this stage, beneficial to extract the two provisions Order VII Rule 11 and Order VI Rule 16 CPC, which are as follows:

"Order VII Rule 11 CPC.

11. Rejection of plaint.- The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

Order VI Rule 16 CPC.

16. Striking out pleadings.- The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

35. Therefore, the court is empowered to strike off the pleadings at any stage of the proceedings if it finds that the pleadings are unnecessary, scandalous, frivolous or vexatious, or which may tend to prejudice, embarrass or delay the fair trial of the suit, or which is otherwise an abuse of the process of the Court. The circumstances under which the plaint shall be rejected are quite different from the circumstances enumerated for striking off the pleadings. While considering the application under Order VI Rule 16 CPC for striking off the pleadings, pleadings being unnecessary, scandalous, frivolous or vexatious 22 and if it is otherwise an abuse of process of the court, the court gets jurisdiction to strike off the pleadings. Thus it could be noticed that scope of application under Order VI Rule 16 CPC is more than that of the application under Order VII Rule 11 CPC.

36. The pleading if it does not meet the requirement of the allegation made in the petition, it is an unnecessary pleading. The pleading which is insufficient to resolve the issue in the petition renders the pleadings frivolous, i.e., of little weight or importance. The pleading consisting of accusations by the complainant intending to cause annoyance to the person accused and not merely to further the ends of justice renders the said pleading vexatious. A pleading is said to be scandalous, if it alleges anything unbecoming the dignity of the Court to hear, or is contrary to good manners or which charges a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading.

37. It is the specific case of the petitioner that the respondent suffered disqualification to contest the election on the ground that he is not a citizen of India on voluntarily 23 accepting the citizenship of U.S.A. It is his further case that name of the respondent does not find a place in the voters list of 49-Bidar South Assembly Constituency at Serial No.673 as stated by the respondent in the nomination paper. It is stated the respondent having entered into BMIC contract of profit with the Government of Karnataka, he suffered disqualification under Section 9-A of the Act. It is contended that in view of the above, acceptance of nomination of the respondent is improper and it has materially affected the election of the respondent.

38. First of all the issue relating to citizenship is a question which has to be decided by the appropriate authority, the Central Government and it cannot be the subject matter before different forums is the law laid down in Bhagavathi Prasad Dixit Ghorewala's case referred to supra. Para 11, 13 & 16 of the judgment are extracted for better appreciation.

"11. ...The authority prescribed under the Citizenship Act, 1955 alone can decide the questions arising under S.9(2) and the rules of evidence which should govern that decision shall be those prescribed for the purpose under that Act. ...

For purposes of deciding the question arising under S.9(1) of that Act, the Central Government by virtue of the power conferred on it by S.9(2) has been given an exclusive power to determine in accordance with the rules of evidence provided for the purpose whether a person has acquired the citizenship of another country. It follows that when once a person is admitted or held to be citizen of India, unless there is a decision of the Central Government under S.9(2) of the Citizenship Act, 1955 that he has acquired the citizenship of a foreign country, he should be presumed to be an Indian citizen.... The policy behind S.9(2) appears to be that the right of citizenship of the person who is admittedly an Indian citizen should not be exposed to attack in all forums in the country, but should be decided by one authority in accordance with the prescribed rules and that every other Court or authority would have to act only on the basis of the decision of the prescribed authority in that behalf and on no other basis.

13. Even granting that the High Court had jurisdiction to decide the said question it is seen that the allegations made in the election petition regarding acquisition of citizenship of a foreign 25 country by the respondent were wholly inadequate to record any finding in favour of the appellant since it is not shown that there is any provision in our law which provides that a person would automatically lose his Indian citizenship on his marriage with a person who is a citizen of a foreign country or by acquiring, even if true, property in a foreign country.

16. On going through, all the grounds mentioned in the petition, we feel that they are so frivolous and vexatious that the only order to be passed on the petition is one which has been made by the Hon'ble Court".

39. It is true in the decision reported in (2001) 8 SCC 233 Para-20 (Hari Shannkar Jain vs., Sonia Gandhi) challenge to the citizenship can be the subject matter provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations. The petitioner has failed to provide the provisions of law which provides that a person would automatically lose his Indian citizenship on his voluntarily accepting the citizenship of U.S.A. When and how the respondent voluntarily accepted the citizenship of U.S.A is not 26 provided in the pleadings. This inadequacy of the pleadings renders the pleadings frivolous and vexatious. It is only based on the assumption and presumption of the petitioner that respondent being President or Director of some of the companies in U.S.A. requires citizenship of U.S.A. thereby he ceases to be an Indian citizen, which is not correct.

40. Further the agreement entered into by Nandi Infrastructure Corridor Enterprises Limited for execution of BMICP with the Government of Karnataka does not attract disqualification under Section 9A of the Act for the simple reason that the respondent is not the beneficiary in the said contract. BMICP is conceived and implemented on "Build, Own, Operate, Transfer" (BOOT) basis. There is no financial investment by the State of Karnataka. The Framework Agreement dated 3.4.1997 is not signed by the respondent and execution of BMICP is not the work undertaken by the State Government and that Nandi Infrastructure Corridor Enterprise Limited is a distinct and separate legal entity in the eye of law. Hence on the available materials, it cannot be said that the respondent has suffered 27 disqualification under Section 9-A of the Act rendering the pleadings in paras 5, 9(d), 16(e), (f) and 19 as frivolous and vexatious.

41. It is already held in the order dated 8.4.2014 while considering IA No.6/2013 in Para-19 of the order that there appears to be no serious dispute, as even according to respondent, there had been a mistake in that regard as he was guided by the particulars furnished in the voters I.D. card and that his name is found at a different serial number. Question as to whether these pointed defects constitute defects of substantial character, will have to be decided at trial. In Brij Mohan vs., Satpal (1985) 3 SCR 321 the Apex Court has held that "it is not possible to say generally and in abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character". Therefore, for the limited purpose of considering IA No.6/2013, the pointed defects whether constitute substantial character, court said, will have to be decided at the trial. As the things stand, the name of the 28 respondent found at different serial No.693 and therefore the said defect cannot constitute a defect of substantial character.

(h) and 19 relate to acceptance of nomination of the respondent in violation of Section 5C of the Act. Section 36 of the Act deals with scrutiny of nominations, which is reproduced herein under:

"36. Scrutiny of nominations:

(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not a substantial character."

43. The proceedings of scrutiny of nominations and acceptance or rejection of nomination by the Returning Officer is a summary proceeding. The Returning Officer has placed reliance on the Indian Passport, PAN Card, Entry in the Voters List and Voters ID Card of the respondent and accepted the nomination paper of the respondent. No fault can be found in such summary exercise of power by the Returning Officer and acceptance of nomination of the respondent by the Returning Officer cannot be said to be improper.

44. It is the case of the petitioner that improper acceptance of nomination of the respondent has materially affected the election result of the returned candidate. The petitioner is admittedly not the second highest in the number of votes secured in the election. The petitioner has secured 846 votes as against 47,763 votes secured by the respondent. The 2nd highest votes were polled in favour of one Bandeppa Kashampur with 31,975 votes. It is requirement of law that the pleadings in the petition should state that acceptance of respondent's nomination has prejudicially affected the petitioner's prospects in the election. The petitioner has failed to plead in what way or how declaration of result or acceptance of nomination has been materially affected. Without such pleadings, there is no basis for adjudication warranting interference in the declaration of the result. In this regard, it is beneficial to refer to the ratios laid down in the following decisions:

(i) AIR 1954 SC 513 Para-11 (Vashista Narain Sharma vs., Dev Chandra & Ors).

"11. .... We are of the opinion that the language of Section 100(1)© is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected...."

(ii) AIR 1988 SC 637 Para-9 & 11 (Shivacharan Singh Vs., Chandra Bhan Singh & Ors).

"9....The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes...."

11. ....It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanaiya Lal would have voted for the next candidate Roshan Lal. It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates. In this view, the result of the returned candidate could not be declared void on the basis of surmises and conjectures."

45. The petitioner having failed to plead as to how he could have polled how many number of votes out of the votes secured by the returned candidate and how his election prospects could have bettered or surpassed the returned candidate. Election litigation and for that matter any litigation must be purpose oriented. Challenge to the election shall not be just for the sake of challenge. The petitioner having secured less than 100 votes as against quite good number of votes secured by the returned candidate having failed to plead how he could have bettered than the returned candidate or the candidate who has secured second highest number of votes, is nothing but 32 rendering the election petition filed by the petitioner as abuse of process of the Court. In this connection it is profitable to refer relevant portion of Para-32 of the judgment in Dhartipakar Madanlal Agarwal Vs., Shri Rajiv Gandhi, AIR 1987 SC 1577 which is as follows:

"32. .... Some independent individuals contest election genuinely and some of them have succeeded also but experience has shown that a large number of independent candidates contest the elections for the mere sake of contesting, with a view to make out grounds for challenging the election. Presence of number of independent candidates results in confusion, for the millions of the illiterate and ignorant electors who exercise their electoral rights on the basis of `symbols' printed on the ballot papers. The presence of large number of independent candidates makes the ballot paper of unmanageable size and ordinarily elector is confused in the election booth while exercising his franchise. This leads to confusion. In the instant case, out of 14 candidates who contested the election 11 of them including the appellant contested as independent candidates and they are all polled only paltry number of votes. This shows 33 the genuineness of the candidature of independent candidates."

46. The petitioner filed I A No.1/2014 seeking for production of document and direction to the respondent to file affidavit. This itself shows the petitioner does not possess requisite material and has no personal knowledge. The petitioner intends to fish out evidence and indulge in roving enquiry which is not permissible. The averments made in IA No.1/2014 makes it clear to record a finding that the contentions are frivolous, vexatious, scandalous, unnecessary and bereft of sufficient materials. Hence the pleadings contained in paras 5, 7, 8, 9, 9(a) to (d), 10, 16, 16(a) to (h), 17, 18 and 19 are without any basis, vexatious, scandalous and improper and are liable to be struck off. There are no bona fides on the part of the petitioner in filing the election petition.

47. In the circumstances, I am of the view that the respondent has made out a case for striking off the pleadings as sought for. Accordingly, I A IV/2013 is allowed. Consequent thereupon, there remains nothing to be considered in the 34 election petition and accordingly, the election petition is also rejected.

The statutory deposit towards cost is directed to be paid to the respondent.

Sd/-

JUDGE akd

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Karnataka High Court