Karnataka High Court
Mahesh N Rokhade S/O. Narayana vs H. K. Patil S/O. K. H. Patil on 25 March, 2025
1
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD
DATED THIS THE 25TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
EP NO.100001 OF 2023
BETWEEN:
MAHESH N ROKHADE S/O. NARAYANA,
AGED ABOUT 43 YEARS,
R/AT. NO.3257/1,
RACHOTESWRA GUDI HINDE MANVIYAR, ONI
OKKALGERI, GADAG,
KARNATAKA-582101.
...PETITIONER
(BY SMT PRAMILA NESARGI, SENIOR COUNSEL FOR
SRI GANESH RAIBAGI, ADVOCATE)
AND:
H. K. PATIL S/O. K. H. PATIL,
AGED ABOUT 69 YEARS,
R/AT. TALEGERI ONI,
HULKOTI TQ., DIST. GADAG-582205.
...RESPONDENT
(BY SRI K L PATIL, ADVOCATE)
THIS ELECTION PETITION IS FILED UNDER SECTION 81 OF
THE REPRSENTATION OF PEOPLE ACT, 1951 PRAYING TO A) TO
DECLARE THAT THE DECLARATION OF RESULTS OF RESPONDENT
NO.1, ANNEXURE-A DATED 13.05.2023 FOR THE ASSEMBLY
CONSTITUENCY-66 GADAG AS VOID AND ETC.
2
THIS ELECTION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04TH FEBRUARY, 2025 AND COMING
ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
CAV ORDER
The petitioner has filed this Election Petition under Section
81 of the Representation of Peoples Act, 1951 (for short 'Act of
1951') challenging the election of the respondent, the returned
candidate from 66-Gadag Assembly Constituency in the assembly
elections held in Karnataka 2023.
2. The respondent-elected candidate has invoked Order
VII Rule 11 of the Code of Civil Procedure (for short 'Code') to
reject the petition on two grounds namely; (a) the petition does
not disclose the cause of action; (b) the petition is barred under
law.
3. The petitioner has filed objection to the said
application and contends that the matter requires a trial to
adjudicate the contentions raised in the petition.
3
4. The relief sought by the petitioner can be summarised
as under:
(a) To declare that respondent's election from 66-Gadag
Assembly Constituency as void.
(b) To declare that the respondent has committed corrupt
practice under Sections 123(1), 123(2), 123(4) and 123(6) of the
Act of 1951.
(c) To declare that the result of election of respondent has
been materially affected by the improper reception and counting of
votes under Section 100(1)(a),(d)(iv) of the Act of 1951 and to
disqualify the respondent for 6 years from contesting elections.
(d) A declaration is also sought to declare that the votes
received and counted in favour of the respondent as improper and
prayer is also made to take further consequential actions.
5. The respondent/applicant has primarily based
contentions on two judgments rendered by the co-ordinate Bench
4
of this Court in Smt. B.Lakshmidevi vs. Sri. Rizwan Arshad1
and Sri. Shashank J.Sreedhara vs. Sri. B.Z.Zameer Ahmed
Khan2, in addition to the judgments of the Apex Court in
S.Subramaniam Balaji vs State of Tamil Nadu and others3
and Kanimozhi Karunanidhi vs. A Santhana Kumar and
others4.
6. Sri.K.L.Patil, the learned counsel appearing for the
applicant/respondent would contend:
(a) It is the prerogative of the political parties to hold out
promises to be performed, through election manifesto, in the
event being elected. Such promises cannot be termed as 'bribery'
under Section 123 of the Act of 1951.
(b) The petition is filed on the sole ground that the
guarantees promised in the election manifesto amount to 'bribery'
under Section 123 of the Act of 1951. The Apex Court in the case
of S.Subramaniam Balaji supra, has held that the promises
1
E.P.No.14/2023
2
EP No.15/2023
3
(2013) 9 SCC 659
4
(2013) 9 SCC 659
5
made in election manifesto cannot be construed as bribery under
Section 123 of the Act of 1951. Thus, there is no cause of action in
the eye of law in view of the declaration of law by the Apex Court
in the case referred to supra.
(c) In S.Subramaniam Balaji supra, the Apex Court has
held that promises made by the political parties need not be
universal and it can target a particular section of the society and
exclusion of some others from the promises made in the manifesto
cannot be termed as violative of Article 14 of the Constitution of
India.
(d) The Model Code of Conduct prescribed by the Election
Commission cannot be construed as a law and its violation vis-à-
vis, the election manifesto is not a ground to set-aside the election
as such ground is not enumerated in Section 100 of the Act of
1951.
(e) The requirement of pleading in an Election Petition
stands on a different footing than the other petitions and the
pleading must be specific and must contain material facts. Unless
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the material facts are averred, it will not constitute the cause of
action to file the petition.
(f) The averments in this petition are similar to the
averments in the election petitions already rejected in Smt.
B.Lakshmidevi and Sri. Shashank J.Sreedhara supra, thus,
the issue raised by the respondent is covered in terms of the
judgments in above referred cases where the order rejecting the
petitions have been upheld by the Apex Court as the Special Leave
Petitions against the above mentioned orders are rejected.
7. The learned Senior counsel Smt. Pramila Nesargi,
appearing on behalf of the petitioner would urge that:
(i) While considering the application under Order VII
Rule 11 of the Code, only the averments made in the
petition/plaint is to be looked into and the averments made in the
written statement are not the guiding factors to reject the
petition/plaint if the application is filed to get the petition for want
of cause of action.
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(ii) The averment that the challenge to the election is not
just confined to the sole ground of "corrupt practice" qua the
guarantees offered by the State Unit of Indian National Congress,
but also on the ground that the election manifesto violates the
right under Article of 14 of the Constitution of India and said
contention is tenable under Section 100(1)(d)(iv) of the Act of
1951.
(iii) The election is vitiated by undue influence on the
voters.
(iv) In S.Subramaniam Balaji supra, the Apex Court
has held that the election manifesto by itself cannot amount to
corrupt practice, but in the said case, after examining the election
manifesto which was subject matter of challenge has concluded
that the election manifesto is in conformity with constitutional
provision. Thus, whether the election manifesto in question in the
present case conforms to the constitutional provision requires
consideration at the trial.
(v) Averments made in the petition do not enable the
respondent to invoke any of the clauses of Order VII Rule 11 of
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the Code and the petition cannot be rejected based on the
contentions in the statement of objections filed by the
respondent.
(vi) The question as to whether the election manifesto
conforms to the constitutional provision is not decided in the
judgments delivered by the co-ordinate benches.
(vii) The petitioner has also raised a ground relating to the
expenditure made beyond permissible limit and the said ground
can be contested only in case, the petitioner is given an
opportunity to lead evidence and the application filed for rejecting
the petition is not maintainable.
(viii) The Special Leave Petition while challenging the order
in Shashank J. Sridhara supra, the Apex Court in Civil Appeal
Diary No.20533/2024 has held that the question of law as to
whether the commitments by a political party in its manifesto,
which eventually lead to direct or indirect financial help to the
public at large will also amount to corrupt practice by a candidate
of that party is kept open to be decided in an appropriate case
and the law on this point is not yet settled finally.
9
(ix) The correctness of the law in S.Subramaniam Balaji
supra is doubted and the matter is referred to larger Bench as
such the respondent cannot seek to rely on the ratio in
S.Subramaniam Balaji supra.
8. Learned Senior counsel for the petitioner relied on the
following judgments to contend that the promise in election
manifesto if not in conformity with the provisions of the
Constitution can be a ground to set aside the election of a
returned candidate:
(i) S.Subramaniam Balaji Vs. State of Tamil
Nadu, (2013) 9 SCC 659
(ii) Ashwini Kumar Upadhya Vs. Union of India
, (2023) 14 SCC 611
(iii) Ashwini Kumar Upadhya Vs. Union of
India, (2023) 8 SCC 402.
(iv) Ramesh Baghel Vs State of Chattisgarh
and others, 2025 SCC Online SC 173.
(v) Bomley London Borough Council Vs.
Greater London Council and another,
(1983) 1 AC 768.
9. Before considering the question whether the pleadings
in the petition constitute the cause of action to challenge the
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election of the respondent under Section 100(1)(d)(iv) of the Act
of 1951, it is necessary to keep in mind the law laid down by the
Hon'ble Apex Court in S.Subramaniam Balaji supra. In the
aforementioned judgment, the Hon'ble Apex Court has framed the
following points for consideration:
(i) Whether the promises made by the political parties in
the election manifesto would amount to 'corrupt practices' as per
Section 123 of the Act of 1951 ?
(ii) Whether the Schemes under challenge are within the
ambit of public purpose and if yes, are they violative of Article 14?
(iii) Whether this Court has inherent power to issue
guidelines by application of Vishaka vs State of Rajasthan
[(1997) 6 SCC 241] principle?
(iv) Whether the Comptroller and Auditor General of India
has a duty to examine expenditures even before they are
deployed?
(v) Whether the writ jurisdiction will lie against a political
party?
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10. The question No.1 referred to above is answered
holding that the promises in the election manifesto by itself do not
amount to corrupt practice. And in the context of the said case,
the Apex Court held that the election manifesto under scrutiny in
the said case is in conformity with the provisions of the
Constitution of India.
11. Paragraph No.84 in S.Subramaniam Balaji supra
which is relied on by both parties is extracted as under:
"84. Summary:
84.1. After examining and considering the parameters
laid down in Section 123 of RP Act, we arrived at a
conclusion that the promises in the election manifesto
cannot be read into Section 123 for declaring it to be a
corrupt practice. Thus, promises in the election
manifesto do not constitute as a corrupt practice under
the prevailing law. A reference to a decision of this
Court will be timely. In Ramchandra G. Kapse vs.
Haribansh Ramakbal Singh (1996) 1 SCC 206 this Court
held that:
12
"21.....Ex facie contents of a manifesto, by itself,
cannot be a corrupt practice committed by a candidate
of that party."
84.2. Further, it has been decided that the scheme
challenged in this writ petition falls within the realm of
fulfilling the Directive Principles of State policy thereby
falling within the scope of public purpose.
84.3. The mandate of the Constitution provides various
checks and balances before a scheme can be
implemented. Therefore, as long as the scheme come
within the realm of public purpose and monies
withdrawn for the implementation of scheme by passing
suitable Appropriation Bill, the court has limited
jurisdiction to interfere in such scheme.
84.4. We have also emphasized on the fact that judicial
interference is permissible only when the action of the
government is unconstitutional or contrary to a
statutory provision and not when such action is not wise
or that the extent of expenditure is not for the good of
the State.
84.5. It is also asserted that the scheme challenged
under this petition are in consonance with Article 14 of
the Constitution.
13
84.6. As there is no legislative vacuum in the case on
hand, the scope for application of Vishaka vs. State of
Rajasthan, (1997) 6 SCC 241 principle does not arise.
84.7. The duty of the CAG will arise only after the
expenditure has incurred.
84.8. Since this petition is fit for dismissal dehors the
jurisdiction issue, the issue of jurisdiction is left open."
12. In paragraph No.84.1, the Apex Court has held that
the election manifesto cannot be read into Section 123 of the Act
of 1951 and the promises in the election manifesto do not
constitute a corrupt practice under the prevailing law. At the same
time, the Apex Court has clarified that election manifesto by itself
cannot be a corrupt practice. And in paragraph No.84.5, it has
further held that the scheme under challenge in the said case is in
consonance with Article 14 of the Constitution of India.
13. In paragraph No.84.4 of the above said judgment, the
Hon'ble Apex Court has held that the judicial interference is
permissible only when the action of the Government is
unconstitutional or contrary to the statutory provision and not
when such action is not wise or the extent of expenditure is not
14
for the good of the State. Paragraph No.84.4 in S.Subramaniam
Balaji supra, cannot be read like a Statute. The finding in
paragraph No.84.4 in S.Subramaniam Balaji supra has to be
read and understood in the context of Section 100 of the Act of
1951 because the grounds for declaring election to be void are
found in Section 100 the Act of 1951. And Section 100 of the Act
of 1951 exhaustively enumerates the grounds for challenging the
election of a returned candidate. Thus, it appears that the election
manifesto not being in conformity with the Constitution of India
can be a ground to challenge the election of a returned candidate
under Section 100(1)(d)(iv) of the Act of 1951.
14. Two Co-ordinate Benches of this Court in Smt. B
Lakshmidevi and Sri. Shashank J.Sreedhara supra, have
already taken a view that the promise made in the election
manifesto will not amount to "bribery" under Section 123 of the
Act of 1951. Admittedly, the orders rejecting those two petitions
under Order VII Rule 11 of the Code have attained finality as
Special Leave Petitions challenging the said orders have been
dismissed. In Civil Appeal Diary No.20533/2022, Sri. Shashank
J.Sreedhara supra, the Apex Court observed as under:
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"3. The contention of the learned counsel that
the commitments by a political party in its manifesto,
which eventually lead to direct or indirect financial
help to the public at large, will also amount to corrupt
practice by a candidate of that party, is too farfetched
and cannot be accepted. In any case, in the facts and
circumstances of these cases, we need not to go into
such question elaborately.
The appeals are, accordingly, dismissed.
4. However, the question of law is kept open
to be decided in an appropriate case."
15. Though the question of law is kept open to be decided
in appropriate case, for two reasons, this Court is not inclined to
take a different view.
(a) The allegation relating to corrupt practice in the present
petition is based on the same election manifesto that was
under scrutiny in Sri. Shashank J. Sreedhara supra.
(b) The law in S.Subramaniam Balaji supra, declared by the
Apex Court is not yet overruled or diluted though its
16
correctness is doubted and matter is referred to Larger
Bench in Ashwini Kumar Upadhya supra.
At this juncture, it is to be noticed that merely because the matter
is referred to the larger Bench by the Apex Court to reconsider the
law laid down in a case, the law laid down does not cease to
operate. It binds all Courts till it is overruled or modified, as held
in Union Territory of Ladakh vs Jammu Kashmir National
Conference(2023 SCC OnLine 1140).
16. In view of the dismissal of the petition challenging the
order in Shashanka J. Sreedhara supra, this Court does not
deem it necessary to refer in detail, the judgments relied on by
the learned Senior counsel for the petitioner that the plaint
averments alone should be considered to decide the application
under Order VII Rule 11 of the Code. However, this Court has
kept in mind, the law declared on rejection of plaint in Kamala
vs K.T. Eswara (2008) 12 SCC 661], Bhauram vs Janak
Singh (2012) 8 SCC 701, Ponnala Lakshmaiha vs Kommuri
Pratap Reddy (2012) 7 SCC 788 and few other judgments.
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17. The law on the point is well settled. While considering
the application under Order VII Rule 11 of the Code, only the
plaint averments should be considered and not the contentions in
the written statement or the evidence.
18. Since it is urged that two petitions containing similar
averments alleging corrupt practice have been rejected by this
Court and confirmed by the Hon'ble Apex Court, in the peculiar
facts of this case, where it is urged that the question raised in this
petition is answered by two co-ordinate benches, this Court has
also considered the averments made in the other two petitions as
well.
19. It is also well settled that the plaint has to be
considered in its entirety and the application for rejecting the
plaint cannot be decided with reference to few sentences here and
there in the plaint.
20. While considering the entire petition averments, this
Court has also taken into consideration, the emphasis laid on
certain paragraphs, by the learned Senior counsel to urge that
"material facts" have been pleaded in those paragraphs. Those
18
paragraphs have been extracted below in paragraph No.27 of this
order while considering the sufficiency of pleading relating to
cause of action. However, suffice to say that the pleadings relating
to corrupt practice in the instant petition are based on the election
manifesto. The guarantees and freebies offered in the election
manifesto in the present petition are same as in the petitions in
Smt. B.Lakshmidevi as well as Sri. Shashank J.Sreedhara
supra. Thus, the contention that the election of respondent
candidate is vitiated by corrupt practice qua election manifesto is
untenable and same cannot be accepted in the light of law
declared by the Apex Court in the case of S.Subramaniam Balaji
supra and orders in similar petitions namely Smt. B.Lakshmidevi
and Sri. Shashank J.Sreedhara supra.
21. Learned Senior counsel appearing for the petitioner
has urged that the law in S.Subramaniam Balaji supra is per in
curium on the premise that the said judgment overlooks the law
laid down in Minerva Mills vs Union of India (1980) 3 SCC
625, S.R.Bommai vs Union of India AIR 1994 SC 1918,
State of Madras vs Champakam Dorairajan (1951) 1 SC
351, E.P Royappa vs State of Tamilnadu (1974) 4 SCC 3,
19
Vaman Rao vs Union of India (1981) 2 SCC 362, Charanlal
Sahu vs Giani Zail Singh (1984) 1 SCC 390. Referring to the
judgments, it is urged that the Apex Court has held that the
violation of constitutional provisions and election manifesto not
being in conformity with the constitutional provisions, constitutes
a cause of action to challenge the election.
22. This Court has referred to the aforementioned
judgments. Except the judgment in Charanlal Sahu supra, rest
are not rendered in the context of an election petition. Thus, this
Court is unable to accept that the judgment in S.Subramaniam
Balaji supra is per in curium.
23. In Charanlal Sahu supra, the Apex Court was dealing
with the election of the President of India which is governed by a
different Statute. The question relating corrupt practice qua
election manifesto did not arise in the said case. However, even
in the said judgment, the Apex Court in paragraph 30 has held
that the pleading in an election petition has to be precise, specific
and unambiguous so as to put the respondent on notice. The rule
20
of pleadings that facts that constitute the cause of action must be
specifically pleaded is as fundamental as it is elementary.
24. Nevertheless in S.Subramaniam Balaji supra, the
Apex Court has held that the Court's interference is permissible in
an election in case, the election is held contrary to the
constitutional provisions or the applicable Acts and Rules.
25. This Court has observed that paragraph No.84.4
referred to supra in SUBRAMANIAM BALAJI has to be read in
the context of Section 100 of the Act of 1951, the Court has to
find as to whether material facts are pleaded to attract Section
100(1)(d)(iv) of the Act of 1951 to challenge the election of a
returned candidate complaining violation of the constitutional
provisions of the Act, Rules or the Orders passed under the Act of
1951.
26. In addition, the Court has to decide whether the
pleading in the petition meets the requirement of Section 83 of
the Act of 1951 as well.
21
27. The learned Senior counsel appearing for the
petitioner has invited the attention of the Court to the following
portions in the petition which according to the petitioner are the
material facts attracting Section 100(1)(d)(iv) of the Act of 1951.
"13. The said 5 guarantees are the corrupt practices
amounting to bribery. The said guarantees are in the
nature of offer and promises made by the candidate of
the "Indian national congress" party. This was done
with the consent of the respondent No.1 in the form of
gratification to the electorate of this Constituency and
with the object of directly inducing the electorate to
vote for the Congress party candidate namely the
Respondent No.1. The consideration was the vote in
favour of the respondent No.1 as a gratification with the
motive and reward.
14c. These guidelines were incorporated as Part
VIII of the Model Code of Conduct and it was clarified
that the above guidelines would be applicable from the
date, a political party issues its manifesto irrespective
of whether such date is before or after the date of
announcement of the election scheduled by the Election
Commission. These guidelines are as follows:
(i) The election manifesto shall not contain anything
repugnant to the ideals and principles enshrined in the
Constitution and further that it shall be consistent with
the letter and spirit of other provisions of Model Code of
Conduct.
(ii) The Directive Principles of State Policy enshrined
in the Constitution enjoin upon the State to frame
various welfare measures for the citizens and therefore
22
there can be no objection to the promise of such
welfare in election manifesto. However, political parties
should avoid making those promises which are likely to
vitiate the purity of the election process or exert undue
influence on the voters in exercising their franchise.
(iii) In the interest of transparency, level playing field
and credibility of promises, it is expected that manifesto
also reflect the rationale for the promises and broadly
indicate the ways and means to meet the financial
requirement for it. Trust of voters should be sought
only on those promises which are possible to be
fulfilled."
25. The said scheme is sought to be
implemented with an idea of "Free For all Women",
"No holds barred", conferring free facilities, free bus,
free travel, free allowance for women are the scheme
infringing Article 14 of the Constitution of India by
discriminating men who are travelling inasmuch as
there cannot be any discrimination on the ground of
sex.
35. .... In the instant case, the Guarantee No.5 Scheme
"Shakthi", they discriminate between men and women
and assuring promises only to women which is contrary
to Article 14 of the Constitution of India. As far as
Guarantee No.2, "Gruha Lakshmi" Scheme, again the
amount of Rs.2,000/- per month payable to women is
induced in exercise of vote in favorable of respondent
no.1 and his party....
49. The manifesto are for the benefit of the Congress
Party. The manifesto was prepared with consent of all
the leaders and candidates. In the instant case the
respondent no.1 gave consent for manifesto and was
nominated by congress as their candidate.
23
51. The offer and promise made by the political party to
guarantee free travel for women in particular is a
reward for their votes, amounts to corrupt practice U/s.
123 of the Representation of Peoples Act, 1951 as
stated above.
53. ....The overall promise was The made by the
Respondent and the workers and by the party with the
consent of the Respondent No.1 offering gratification
with the object of directly inducing to vote....
54. In the instant case, the five Guarantees have been
offered as gratification for voting and got the
assurances from the voters and the electorate expected
to vote for them in view of the guarantees and this offer
and promises of five guarantees was as a reward for
getting votes in their favor.
55. The manner in which the canvass was done by
distributing the Manifesto and the guarantee cards and
in turn getting assurances from the voters. There was
an element of bargain while distributing the guarantee
cards for exercise of votes in favor of Respondent as a
consideration the guarantees were offered.
55(b) Besides the Manifesto the Respondent No.1
has also got his Manifesto published in various print
media and electronic media and thereby published it
through his party which are binding on him and the said
publications are with his consent.
64. According to Election Commission the Manifesto
shall not contain repugnant to the ideals and principles
enshrined in the Constitution and further that it shall be
consistent with the letter and spirit of other previsions
of model code of conduct."
24
28. Before dealing with the pleadings in the election
petition, it is necessary to refer to few paragraphs in Khanimozhi
supra, which extensively dealt with the requirement of pleadings
in an election petition and they are extracted as under:
"22. The law so far developed and settled by this
Court with regard to the non-compliance of the
requirement of Section 83(1)(a) of the EP Act, namely -
"an Election petition must contain a concise statement
of material facts on which the petitioner relies", is that
such non-compliance of Section 83(1)(a) read with
Order VII Rule 11 CPC, may entail dismissal of the
Election Petition right at the threshold. "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.
They must be such facts as would afford a basis for the
allegations made in the petition and would constitute
the cause of action as understood in the Code of Civil
Procedure 1908. Material facts would include positive
statement of facts as also positive statement of a
negative fact.
A Three-Judge Bench in Hari Shanker Jain v. Sonia
Gandhi (supra) had an occasion to deal with Section
83(1)(a) of the RP Act and the Court dismissed the
Election petition holding that the bald and vague
averments made in the election petitions do not satisfy
the requirements of pleading "material facts" within the
meaning of Section 83(1)(a) of the RP Act read with the
requirements of Order VII Rule 11 CPC. It was observed
in para 23 and 24 as under:--
25
"23. Section 83(1)(a) of RPA,1951 mandates that an
election petition shall contain a concise statement of
the material facts on which the petitioner relies. By a
series of decisions of this Court, it is well settled that
the material facts required to be stated are those facts
which can be considered as materials supporting the
allegations made. In other words, they must be such
facts as would afford a basis for the allegations made in
the petition and would constitute the cause of action as
understood in the Civil Procedure Code, 1908. 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 [(1969) 3 SCC 238 : (1969) 3 SCR
603], Jitendra Bahadur Singh v. Krishna Behari [(1969)
2 SCC 433].) 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 [(1999) 3 SCC 737] 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.
24. It is the duty of the court to examine the petition
irrespective of any written statement or denial and
reject the petition if it does not disclose a cause of
26
action. To enable a court to reject a plaint on the
ground that it does not disclose a cause of action, it
should look at the plaint and nothing else. Courts have
always frowned upon vague pleadings which leave a
wide scope to adduce any evidence. No amount of
evidence can cure basic defect in the pleadings."
25. In case of Mahadeorao Sukaji Shivankar v.
Ramaratan Bapu10, a Three-Judge Bench of this Court
again had an occasion to deal with the issues as to what
would constitute "material facts" and what would be the
consequences of not stating the "material facts" in the
Election petition, as contemplated in Section 83(1)(a) of
the RP Act, and the Court observed as under:
"6. Now, it is no doubt true that all material
facts have to be set out in an election petition.
If material facts are not stated in a plaint or a
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. The question, however, is as to
whether the petitioner had set out material
facts in the election petition. The expression
"material facts" has neither been defined in
the Act nor in the Code. It may be stated that
the material facts are those facts upon which a
party relies for his claim or defence. In other
words, material facts are facts upon which the
plaintiff's cause of action or the defendant's
defence depends. What particulars could be
said to be material facts would depend upon
the facts of each case and no rule of universal
application can be laid down. It is, however,
absolutely essential that all basic and primary
facts which must be proved at the trial by the
27
party to establish existence of cause of action
or defence are material facts and must be
stated in the pleading of the party.
7. But, it is equally well settled that there is
distinction between "material facts" and
"particulars". Material facts are primary or
basic facts which must be pleaded by the
petitioner in support of the case set up by him
either to prove his cause of action or defence.
Particulars, on the other hand, are details in
support of material facts pleaded by the party.
They amplify, refine and embellish material
facts by giving finishing touch to the basic
contours of a picture already drawn so as to
make it full, more clear and more informative.
Particulars ensure conduct of fair trial and
would not take the opposite party by surprise."
26. In Anil Vasudev Salgaonkar v. Naresh
Kushali Shigaonkar11, this Court has discussed
number of earlier decisions on the issue as to when the
Election petition could be dismissed summarily if it does
not furnish the cause of action in exercise of powers
under the Code of Civil Procedure read with Section 83
of the R.P. Act.
"50. The position is well settled that an election petition
can be summarily dismissed if it does not furnish the
cause of action in exercise of the power under the Code
of Civil Procedure. Appropriate orders in exercise of
powers under the Code can be passed if the mandatory
requirements enjoined by Section 83 of the Act to
incorporate the material facts in the election petition
are not complied with.
28
51. This Court in Samant N. Balkrishna case [(1969)
3 SCC 238] has expressed itself in no uncertain terms
that the omission of a single material fact would lead to
an incomplete cause of action and that an election
petition without the material facts relating to a corrupt
practice is not an election petition at all. xxxxxxxxxxx
52.In V.Narayanaswamy v. C.P. Thirunavukkarasu
[(2000) 2 SCC 294] this Court reiterated the legal
position that an election petition is liable to be
dismissed if it lacks in material facts. In L.R.
Shivaramagowda v. T.M. Chandrashekar [(1999) 1
SCC 666] this Court again considered the importance of
pleadings in an election petition alleging corrupt
practice falling within the scope of Section 123 of the
Act and observed as under : (SCC p. 677, para 11)
"11. This Court has repeatedly stressed the importance
of pleadings in an election petition and pointed out the
difference between 'material facts' and 'material
particulars'. While the failure to plead material facts is
fatal to the election petition and no amendment of the
pleading could be allowed to introduce such material
facts after the time-limit prescribed for filing the
election petition, the absence of material particulars can
be cured at a later stage by an appropriate
amendment."
53. In Udhav Singh case [(1977) 1 SCC 511] this
Court observed as under : (SCC pp. 522-23, para 41)
"41. Like the Code of Civil Procedure,
this section also envisages a distinction
between 'material facts' and
'material particulars'. Clause (a) of sub-
section (1) corresponds to Order 6 Rule 2,
while clause (b) is analogous to Order 6 Rules
4 and 6 of the Code. The distinction between
29
'material facts' and 'material particulars' is
important because different consequences
may flow from a deficiency of such facts or
particulars in the pleading. Failure to plead
even a single material fact leads to an
incomplete cause of action and incomplete
allegations of such a charge are liable to be
struck off under Order 6 Rule 16, Code of Civil
Procedure. If the petition is based solely on
those allegations which suffer from lack
of material facts, the petition is liable to be
summarily rejected for want of a cause of
action. In the case of a petition suffering from
a deficiency of material particulars, the court
has a discretion to allow the petitioner to
supply the required particulars even after the
expiry of limitation."
54. In H.D. Revanna case [(1999) 2 SCC 217]
the appeal was filed by the candidate who had
succeeded in the election and whose application for
dismissal of the election petition in limine was rejected
by the High Court. This Court noticed that it has been
laid down by this Court 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. xxxxxxxxxx
55. In Harkirat Singh v. Amrinder
Singh [(2005) 13 SCC 511] this Court again reiterated
30
the distinction between "material facts" and "material
particulars" and observed as under : (SCC p. 527, paras
51-52)
"51. A distinction between 'material facts' and
'particulars', however, must not be
overlooked. 'Material facts' are primary or
basic facts which must be pleaded by the
plaintiff or by the defendant in support of the
case set up by him either to prove his cause
of action or defence. 'Particulars', on the
other hand, are details in support of material
facts pleaded by the party. They amplify,
refine and embellish material facts by giving
distinctive touch to the basic contours of a
picture already drawn so as to make it full,
more clear and more informative. 'Particulars'
thus ensure conduct of fair trial and would not
take the opposite party by surprise.
52. All 'material facts' must be pleaded by the
party in support of the case set up by him.
Since the object and purpose is to enable the
opposite party to know the case he has to
meet with, in the absence of pleading, a party
cannot be allowed to lead evidence. Failure to
state even a single material fact, hence, will
entail dismissal of the suit or petition.
Particulars, on the other hand, are the details
of the case which is in the nature of evidence
a party would be leading at the time of trial."
56. In Sudarsha Avasthi v. Shiv Pal
Singh [(2008) 7 SCC 604] this Court observed as
under : (SCC p. 612, para 20) "20. The election petition
is a serious matter and it cannot be treated lightly or in
31
a fanciful manner nor is it given to a person who uses
this as a handle for vexatious purpose."
57. There is no definition of "material facts"
either in the Representation of the People Act, 1951 nor
in the Code of Civil Procedure. In a series of judgments,
this Court has laid down that all facts necessary to
formulate a complete cause of action should be termed
as "material facts". All basic and primary facts which
must be proved by a party to establish the existence of
cause of action or defence are material facts. "Material
facts" in other words mean the entire bundle of facts
which would constitute a complete cause of action. This
Court in Harkirat Singh case [(2005) 13 SCC 511]
tried to give various meanings of "material facts". The
relevant para 48 of the said judgment is reproduced as
under : (SCC pp. 526-27)
"48. The expression 'material facts' has neither been
defined in the Act nor in the Code. According to the
dictionary meaning, 'material' means 'fundamental',
'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive',
'essential', 'pivotal', 'indispensable', 'elementary' or
'primary'. [Burton's Legal Thesaurus (3rd Edn.), p. 349.]
The phrase 'material facts', therefore, may be said to
be those facts upon which a party relies for its claim or
defence. In other words, 'material facts' are facts upon
which the plaintiff's cause of action or the defendant's
defence depends. What particulars could be said to be
'material facts' would depend upon the facts of each
case and no rule of universal application can be laid
down. It is, however, absolutely essential that all basic
32
and primary facts which must be proved at the trial by
the party to establish the existence of a cause of action
or defence are material facts and must be stated in the
pleading by the party."
27. In Ram Sukh v. Dinesh Aggarwal (supra),
this Court again while examining the maintainability of
Election petition filed under Section 100(1)(d)(iv) of the
RP Act, elaborately considered the earlier
decisions and observed that it was necessary for
the election petitioner to aver specifically in what
manner the result of the election in so far as it
concerned the returned candidate was materially
affected due to omission on the part of the
Returning Officer. The Court in the said case having
found that such averments being missing in the Election
petition, upheld the judgment of the High
Court/Election Tribunal rejecting the Election petition at
the threshold. xxxxx:--
(emphasis supplied)
"14. The requirement in an election petition as to the
statement of material facts and the consequences of
lack of such disclosure with reference to Sections 81, 83
and 86 of the Act came up for consideration before a
three-Judge Bench of this Court in Samant N.
Balkrishna v. George Fernandez [(1969) 3 SCC 238].
Speaking for the three-Judge Bench, M. Hidayatullah,
C.J., inter alia, laid down that:
33
(i) Section 83 of the Act is mandatory and requires first
a concise statement of material facts and then the
fullest possible particulars;
(ii) omission of even a single material fact leads to an
incomplete cause of action and statement of claim
becomes bad;
(iii) the function of particulars is to present in full a
picture of the cause of action and to make the opposite
party understand the case he will have to meet;
(iv) material facts and particulars are distinct matters--
material facts will mention statements of fact and
particulars will set out the names of persons with date,
time and place; and
(v.) in stating the material facts it will not do merely to
quote the words of the section because then the
efficacy of the material facts will be lost.
15. At this juncture, in order to appreciate the real
object and purport of the phrase "material facts",
particularly with reference to election law, it would be
appropriate to notice the distinction between the
phrases "material facts" as appearing in clause (a) and
"particulars" as appearing in clause (b) of sub-section
(1) of Section 83. As stated above, "material facts" are
primary or basic facts which have to be pleaded by the
petitioner to prove his cause of action and by the
defendant to prove his defence. "Particulars", on the
other hand, are details in support of the material facts,
pleaded by the parties. They amplify, refine and
embellish material facts by giving distinctive touch to
the basic contours of a picture already drawn so as to
make it full, more clear and more informative. Unlike
"material facts" which provide the basic foundation on
which the entire edifice of the election petition is built,
"particulars" are to be stated to ensure that the
opposite party is not taken by surprise.
34
16. The distinction between "material facts" and
"particulars" and their requirement in an election
petition was succinctly brought out by this Court
in Virender Nath Gautam v. Satpal Singh [(2007) 3 SCC
617] wherein C.K. Thakker, J., stated thus : (SCC pp.
631-32, para 50)
"50. There is distinction between facta probanda (the
facts required to be proved i.e. material facts) and facta
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 facta 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."
17. xxxx
18. Undoubtedly, by virtue of Section 87 of the
Act, the provisions of the Code apply to the trial of an
election petition and, therefore, in the absence of
anything to the contrary in the Act, the court trying an
election petition can act in exercise of its power under
the Code, including Order 6 Rule 16 and Order 7 Rule
11 of the Code. The object of both the provisions is to
ensure that meaningless litigation, which is otherwise
bound to prove abortive, should not be permitted to
occupy the judicial time of the courts. If that is so in
matters pertaining to ordinary civil litigation, it must
35
apply with greater vigour in election matters where the
pendency of an election petition is likely to inhibit the
elected representative of the people in the discharge of
his public duties for which the electorate have reposed
confidence in him. The submission, therefore, must fail.
19. Coming to the second limb of the argument
viz. absence of Section 83 in Section 86 of the Act,
which specifically provides for dismissal of an election
petition which does not comply with certain provisions
of the Act, in our view, the issue is no longer res
integra. A similar plea was negatived by a three-Judge
Bench of this Court in Hardwari Lal v. Kanwal
Singh [(1972) 1 SCC 214], wherein speaking for the
Bench, A.N. Ray, J. (as His Lordship then was) said :
(SCC p. 221, para 23)
"23. Counsel on behalf of the respondent submitted
that an election petition could not be dismissed by
reason of want of material facts because Section 86 of
the Act conferred power on the High Court to dismiss
the election petition which did not comply with the
provisions of Section 81, or Section 82 or Section 117
of the Act. It was emphasised that Section 83 did not
find place in Section 86. Under Section 87 of the Act
every election petition shall be tried by the High Court
as nearly as may be in accordance with the procedure
applicable under the Civil Procedure Code, 1908, to the
trial of suits. A suit which does not furnish cause of
action can be dismissed."
36
20. The issue was again dealt with by this Court
in Azhar Hussain v. Rajiv Gandhi [1986 Supp SCC 315].
Referring to earlier pronouncements of this Court
in Samant N. Balkrishna [(1969) 3 SCC 238] and Udhav
Singh v. Madhav Rao Scindia [(1977) 1 SCC 511]
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 in Azhar
Hussain case [1986 Supp SCC 315] 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.
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
37
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.
(emphasis supplied)
38
29. The Apex Court after considering various judgments
on the election petitions and the power of the Court to reject the
election petition at the threshold invoking Order VII Rule 11 of the
Code has formulated the above extracted conclusions on the
requirement of pleadings in an election petition.
30. Keeping in mind, the ratio laid down in Khazimoni
supra, if the contents of the petition more particularly the extracts
of the petition quoted in paragraph No.27 of this order are
perused, it is evident that the petition centres around the plea
that the election of the respondent is vitiated by corrupt practice
on account of the guarantee Scheme. As already noticed, the
promises by a political party or the candidate in an election
through the election manifesto by itself cannot be a ground to
hold that such promises amount to corrupt practice.
31. Section 83 of the Act of 1951 deals with the contents
of the Election Petition. Section 83(1)(a) and (b) of the Act of
1951 are relevant for this petition and they are as under:
"Section 83.Contents of petition- (1) An
election petition -
39
a) Shall contain a concise
statement of the material facts on which the
petitioner relies;
b) Shall set forth full particulars of
any corrupt practice that the petitioner
alleges, including as full a statement as
possible of the names of the parties alleged
to have committed such corrupt practice
and the date and place of the commission of
each such practice;"
32. Section 100(1)(d)(iv) of the Act of 1951 reads as
under.
"100.Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion--
(a) xxx;
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected--
(i) xxx
(ii) xx
(iii) xxx
(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."
(emphasis supplied)
40
33. On a meaningful reading of the aforementioned
provision, one can notice that if the election of the returned
candidate is to be set aside on account of the violation of the
constitutional provisions or the Acts or the Rules, one has to
establish that the result of the returned candidate is materially
affected by such non compliance. This aspect is evident in
Section 83(1) r/w Section 100(1)(d)(iv) of the Act of 1951 as the
expression, "that the result of the election, insofar as it concerns a
returned candidate, has been materially affected" is found in
Section 100(1)(d) of the Act of 1951.
34. The Apex Court in Khazimoni supra has noted the
distinction between "material facts" and "particulars". Whether the
pleadings relating to violation of provisions of the Constitution of
India by itself would constitute the "material facts" or not is the
point for consideration. Section 100(1)(d) of the Act of 1951 as
already noticed, provides for a ground to declare the election void,
in case, the result of the returned candidate has been
"materially affected" by the violation of sub-clauses in clause
(d) of Sub-section (1) of Section 100.
41
35. Section 100(1)(d) of the Act of 1951 deals with the
result of an election which has been "materially affected" under
any of the four sub-clauses named therein. Sub Clauses (ii) and
(iv) of Section 100(1)(d) are relevant in this petition. Sub Clause
(ii) of Section 100(1)(d) deals with corrupt practice in the interest
of returned candidate by an agent other than his election agent.
The corrupt practice alleged against the respondent is with
reference to election manifesto and the freebies offered in the
election manifesto. Thus, said ground is not available as already
discussed.
36. Sub Clause (iv) deals with non compliance with the
provisions of the Constitution of India or of this Act or any Rules
or Orders made under this Act. Though, non compliance with the
provisions of the Constitution of India or of this Act or any Rules
or Orders made under the Act of 1951 appears to be a ground to
challenge the election of a returned candidate, the sub-clause (iv)
of clause (d) of Section 100 has to be read bearing in mind, the
requirement of clause (d) of sub-section (1) of Section 100 of the
Act of 1951 which reads as under:
42
"that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-"
(emphasis supplied)
37. On a meaningful reading of Section 100(1)(d)(iv) of
the Act of 1951, one cannot ignore the rigour and mandate of
clause (d) which uses the expression "that the result of the
election, insofar as it concerns a returned candidate, has
been materially affected". This being the position, this Court
has to hold that non compliance of constitutional provisions or the
provisions of the Act of 1951 or any Rules or Orders made under
this Act by itself, in all situations, may not be a ground to set-
aside the election. In few circumstances, the non-compliance may
materially affect the result of the returned candidate and may
provide grounds to set aside the election.
38. However, in few other cases, non-compliance of some
of the provisions of the Constitution of India or the Act or the
Rules may not materially affect the result of the returned
candidate, then, the Court may not set-aside the election of the
43
returned candidate. The reason is not far to seek. Section 100(1)
of the Act of 1951 also uses the expression, "subject to the
provisions of sub-section (2) if the High Court is of the
opinion". The aforesaid expression, if it is read with the
requirement of clause (d) of sub-section (1) of Section 100 of the
Act of 1951 leads to the conclusion that High Court has to form
an opinion that the election of the returned candidate has
been materially affected on account of non-compliance of
the provisions of the Constitution of India or the Act or the
Rules and Orders made under the Act. Hence, to record such
opinion, there has to be pleading to the effect that the election
result of the returned candidate has been materially affected on
account of non-compliance of the constitutional provisions.
39. On a careful consideration of the petition averments,
more particularly, the averments extracted above, it is noticed
that the petitioner's attack is on the corrupt practice based on the
election manifesto. Indeed, it is true that the petitioner has raised
a contention that the election manifesto violates Article 14 of the
Constitution of India. However, without any "material facts" being
pleaded to the effect that the voters were swayed away by the
44
election manifesto, and without there being any allegation that
the respondent was elected because of the election manifesto
being contrary to the provisions of the Constitution of India, this
Court cannot hold that the said pleading is sufficient to test the
petition under Section 100(1)(d)(iv) of the Act of 1951.
40. This Court being aware of the distinction between
"material facts" and "material particulars" as noticed in
Khanimonzhi supra. It is true that all the details as to how the
voters changed their preference in the voting influenced by the
election manifesto, may not be pleaded as they fall in the domain
of "material particulars". However, to test the election of the
returned candidate on the ground available under Section
100(1)(d)(iv) of the Act of 1951 qua the election manifesto, the
petitioner was required to plead that the voters voted in favour of
the respondent because of the election manifesto and but for the
promises made in the election manifesto, the respondent would
not have been elected and the result of the election was materially
affected by the election manifesto being contrary to the
constitutional provisions. However, it should not be understood as
this Court has ruled that the petition averment should have
45
incorporated the very same sentence as stated above. However,
in substance, there should have been a plea that the returned
candidate was elected because the voters voted in his favour
influenced by the election manifesto. Such plea is not found in the
petition. It is relevant to bear in mind that the petition is not filed
by the candidate who lost the election but is filed by a voter. No
doubt, the voter is also competent to file an election petition
however in the light of the law laid down by the Apex Court in
Khanimonzhi supra, relating to pleading, the "material facts" in
an election petition, this Court is of the view that this petition
lacks "material facts" to attract Section 100(1)(d)(iv) of the Act of
1951 to try the election petition on the ground that it has
materially affected the result of the election of the respondent.
41. The petitioner in his pleadings has contended that the
election manifesto does not conform to Article 14 of the
Constitution of India and the model code of conduct prescribed by
Election Commission of India. However, what can be certainly
noticed is that there is no pleading to the effect that because of
the election manifesto being not inconformity with the
constitutional provisions or the model code of conduct prescribed
46
by the Election Commission and because the respondent and his
agents sought vote on account of freebies offered in the election
manifesto, the voters were swayed away from other candidates
and the voters voted in favour of the returned candidate being
lured by the election manifesto. In the pleading, it is repeatedly
averred that the promises in the election manifesto amounts to
bribery and the campaign by the petitioner and the political
leaders of the party supporting the respondent sought vote based
on the guarantee and freebies promised in the election manifesto
and guarantee cards.
42. This Court has to take this view as the Apex Court as
already noticed supra, has concluded that election petition is a
serious matter and it must conform to the requirement of Section
83 of the Act of 1951.
43. In the light of the aforementioned discussions, this
Court is of the view that the "material facts" relating to the
violation of Section 100(1)(d)(iv) of the Act of 1951 is lacking in
the petition. When that is the case, no cause of action is made out
under Section 100(1)(d)(iv) of the Act of 1951 though, the said
47
provision is pleaded/quoted in the petition. The law on this point
is well settled. Mere quoting the provision does not amount to
cause of action. The cause of action is bundle of essential facts
based on which the party can approach the Court seeking the
relief.
44. It is also noticed from the judgment of the Apex
Court, while dealing with a petition under Order VII Rule 11 of the
Code, the Court has to bear in mind whether the petition succeeds
in case, the respondent does not appear and contest by traverse
the pleadings. After going through the petition, this Court does
not find any material facts to try the case whether the election of
the respondent is materially affected by non-compliance of the
Constitutional mandate in the election manifesto.
45. To hold that the pleading relating to violation of the
Constitutional provisions, qua election manifesto and that by itself
constitutes a ground to set-aside the election under Section
100(1)(d)(iv) of the Act of 1951 will render the expression "has
been materially affected" in Section 100(1)(d) otiose.
48
46. From the language employed in Section 100(1)(d) of
the Act of 1951, where the challenge to the election is on the
premise that the manifesto is not in compliance with the
provisions of the Constitution or model code of conduct prescribed
by the Election Commission of India, one can conclude that the
such election petition cannot be tried unless it is pleaded that the
election manifesto has "materially affected" the outcome of the
election with sufficient "material facts" relating to the effect of the
election manifesto on the voters decision. For lack of "material
facts" relating to the election result being "materially affected",
this Court has to hold that the cause of action is not made out in
the petition to challenge the election on the ground of violation of
Section 100(1)(d)(iv) of the Act of 1951.
47. It is also urged by the learned Senior counsel for the
petitioner that the petition is also filed on the ground that the
expenditure of the guarantee scheme is not reflected in the
expenditure shown by the returned candidate. The contention
relating to non compliance of filing the details of the expenditure
is found in Paragraph No.75 of the petition which reads as under:
49
"75. In the instant case, the Respondent filed
their returns brining it within the authorized
expenditure. While doing so, he has not included the
expenditure incurred for providing the Manifesto,
guarantee cards, advertisement charges in various
newspapers, expenses incurred for canvassing votes
and the expenditure that is being incurred by the
Government for implementing the Schemes. For
implementing these schemes each gurantee exceeds
more than Rs.20,00,00,000/- (Rupees Twenty Crores)
of minimum amount and the expenditure is being
incurred by the Government at the cost of the tax
payers. If the candidate is taking advantage of the
gurantee and if they are implementing at the cost of the
Government, it not only amounts to offence U/s. 126
and also amounts to embezzlement of Government
money on either account if the expenditure is beyond
the limit and they have to be disqualified."
48. It is noticed that the petitioner is contending that the
expenditure made by the political party should be included in the
expenditure of the candidate contesting the election representing
the political party, no provision of law is pointed out to accept the
said contention. It is also noticed that Rs.20,00,00,000/- which is
said to be the probable expenditure to implement the guarantee
50
scheme and it is stated that if such scheme is implemented, it
amounts to an offence under Section 126 of the Act of 1951. This
Court has considered Section 126 of the Act of 1951 and same
deals with the prohibition to hold public meetings 48 hours prior
to the conclusion of the poll. This Court does not find any
material facts in the petition to hold that a cause of action is made
out under Section 126 r/w Section 100(1)(d)(iv) of the Act of
1951 to try the case on the premise that the election of returned
candidate is materially affected.
49. Learned Senior counsel urged that the Election
Commission of India pursuant to the direction issued by the Apex
Court has framed Model Code of Conduct and the said Model Code
of Conduct stipulates the compliance of Constitutional Scheme and
as such, the challenge to the election has to be considered in the
backdrop of the violation of the Model Code of Conduct as well
and the same is one of the grounds raised in the petition and all
these contentions require a trial and cannot be adjudicated in an
application under Order VII Rule 11 of the Code. Section 100 of
the Act of 1951 does not provide for setting aside the election on
the premise that the Model Code of Conduct is violated.
51
50. This Court has considered the judgments relied on by
the learned Senior counsel appearing for the petitioner in
Ramesh Baghel, Ashwini Kumar Upadhyay and Bromley
London Borough Council supra. Suffice it to stay the ratio in the
aforementioned judgments do not apply to the present facts of
the case as those judgments have been rendered in entirely
different factual settings.
51. Hence the following:
ORDER
(a) The application under Order VII Rule 11 of the Code of Civil Procedure filed by the respondent is allowed.
(b) Consequently, the election petition is rejected.
(c) No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE GVP/brn