Madhya Pradesh High Court
Manoj Kumar Agrawal vs The State Of Madhya Pradesh on 18 October, 2024
1
EP No. 19 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ELECTION PETITION NO.19 of 2024
MANOJ KUMAR AGRAWAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS.
.........................................................................................................
Appearance:
Shri Manoj Agrawal- petitioner is present in person.
Shri Kamal Nath Nayak - Panel Lawyer for the respondent No.1 - State.
Shri Prakash Upadhyay- Advocate for respondent No.3.
Shri Abhishek Arjaria - Advocate for the respondent No.4.
None for respondents No. 5 & 10.
Respondents No. 2, 6, 7, 8,9,11 &12 are proceeded ex-parte.
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ORDER
(Reserved on :30.09.2024) (Pronounced on : 18.10.2024) Heard on IA No. 19877/2024 which is an application for rejection of election petition under Order 7 Rule 11 C.P.C.
2. The learned counsel for the returned candidate-respondent No.3 has argued that the petition and affidavit attached therewith suffers from material defect inasmuch the verification does not mention that which of the paragraphs are true to the knowledge of the petitioner and which paragraphs are true to the information of the petitioner and in election petition the said fact is material because the returned candidate must know Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 2 EP No. 19 of 2024 that which allegations are to be cross-examined from the election petitioner and which are to be cross-examined from his witnesses.
3. The learned counsel for the respondent No.3 further submits that the vote difference was 2.69 Lakhs between the returned candidate and first runner-up and therefore, with such a huge vote difference the process of election petition should not be set into motion on a mere apprehension or mere apprehension of the election petitioner. It is not pleaded in the election petition that how the result of the election was materially affected as vote difference was 2.69 Lakhs. It is further argued that no certificate was sought from the Election Commission of India in terms of Section 9 (2) of the Act of 1951 and therefore, in the absence of certificate of Election Commission of India in terms of Section 9 (2) the nomination form could not have been rejected by the returning officer and therefore, the nomination form of the petitioner was properly accepted.
4. It was further argued that the petition suffers from non-disclosure and non-pleading of material facts to justify a valid cause of action and that in absence of a valid pleading which if as made in the election petition are taken to be correct in their entirety, an order cannot be passed allowing the election petition. Therefore, the election petition suffers from non- disclosure of a valid cause of action. Only a vague pleading has been made to submit that the petitioner was removed from the office of Director of a cooperative society on account of being a defaulter, but that does not satisfy the test of dismissal for corruption and disloyalty and therefore, even if the pleadings as supported by the documents are taken to be true and documents are taken to be proved, no order can be passed against the returned candidate.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 3 EP No. 19 of 20245. Per Contra, it is contended by learned counsel for the election petitioner who argued in person that the petitioner was disqualified in terms of Section 9 of Act of 1951 because he was a person who has been dismissed for corruption or disloyalty to the State and that dismissal took place in the year 2020 more particularly by order dated 03.03.2020 and this disqualification would be removed only in March, 2025 whereas the nomination in question took place in April, 2024 i.e. within the disqualification period. The election petitioner relies on Section 9(1) of The Representation of People Act , 1951 which reads as under:-
9. Disqualification for dismissal for corruption or disloyalty.--(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact:
Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person.
6. Thus, it is contended by learned counsel for the election petitioner that nomination paper of the returned candidate was improperly accepted by the returning officer. It was further argued that as the returned candidate Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 4 EP No. 19 of 2024 was having prior disqualification in terms of Section 9 of the Act of 1951, therefore, the returning officer ought to have rejected the nomination which he failed to do. The petitioner submits that he has not sought any disqualification on the ground that returned candidate being disqualified in terms of Act of 1951. It was further argued that the Assistant Returning Officer decided the objections which are placed on record as (Annexure P-
5) to election petition No.18/2024 who was incompetent to decide the objection as to nomination and only returning officer could have decided the objection.
7. In rejoinder submissions the counsel for the respondent No.3 argued that the corrupt practice must be pleaded within four corners of Section 123 of Act of 1951 which has not been done in the present case and that the assistant returning officer also falls within the definition of returning officer in terms of Section 22 (2) of Act of 1951 and therefore, the acceptance of the nomination was proper.
8. Heard.
9. This Court first proceeds to examine whether there are necessary pleadings of material facts disclosing a valid cause of action, and whether the election petition can be allowed if the pleadings as made are taken to be true and the documents so filed are taken to be proved.
10. The present petition is filed on the following grounds:
A. Because, the respondent no. 3 (Shri Gyaneshwar Patil- a candidate of "Bhartiya Janta Party") was not qualified or was disqualified on the date of submission of his nomination form ie. 18-04-2024 or 20-04-2024 and/or on the date. of 7 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 5 EP No. 19 of 2024 scrutiny of his nomination form i.e. 26-04- 2024, as he was dismissed /terminated for the allegation of defaulter/embezzlement of lacs of loan amount/public money/ disloyalty /corruption, from the post of President/Director, M.P. Rajya Powerloom -Bunkar Sahakari Sangh Maryadit Burhanpur by the Commissioner/Senior authority of State Govt. of M.P. vide order dated 03-03-2020/06-03-2020.
B. Because, the mandatory period of 5 years of disqualification w.e.f. 03-03-2020/06-03-2020 was not over on the date of submission of nomination paper i.e. 18-04- 2024/20-04-2024 or on the date of scrutiny of nomination papers i.e. 26-04- 2024, hence the respondent no. 3 (Gyaneshwar Patil) was not qualified or was disqualified therefore his nomination form was to be rejected by the Returning Officer/respondent no. 2.
C. Because, all 4 of the nomination forms of the respondent no. 3 (Gyaneshwar Patil) dated 18-04-2022/20-04-2022 ought to have been decided and rejected by the respondent no. 2/Returning Officer.
D. Because, all the 4 nomination forms of the candidate of Bhartiya Janta Party / respondent no. 3 (Gyaneshwar Patil) have been illegally accepted, as on the date of scrutiny of nomination i.e. on 26-04-2024, he was disqualified or was not qualified to be chosen to fill the seat under the Constitution and the provision of R.P. Act 1951, therefore the declaration of respondent no. 3/returned candidate (Gyaneshwar Patil) to fill Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 6 EP No. 19 of 2024 the seat of Parliamentary Constituency no. 28 Khandwa dated 04-06-2024 (Annnexure-P/8) as an elected candidate, by the Returning Officer/respondent no. 2 is liable to be quashed.
E. Because, the Returning Officer /respondent no. 2 is guilty of breach of his official duty, who has intentionally. and deliberately did not comply it's duty while taking no note on the written objection dated 24-04-2024 (served on 25-04- 2024) of one Shri Luv Joshi for rejection of nomination form of respondent no. 3 (Gyaneshwar Patil) while scrutiny of -
nomination forms on26-04-2024.
F. Because, under the provision of the R.P. Act 1951 it. was incumbent upon and the lawful duty of the returning officer/respondent no. 2 to take note of objection of Shri Luv Joshi dated 24-04-2024 (served on 25-04-2024) while scrutiny of nomination form of respondent no. 3 (Gyaneshwar Patil) on 26-04-2024, and the false information filled/given by the said candidate respondent no. - 3 (Gyaneshwar Patil) in clause 6 of part 3- "ka" at page 4 of the nomination form, in the light of order of state Govt. of M.P. dated 03-03-2020/06-03-2020 terminating the said candidate respondent no. 3 (Gyaneshwar Patil) from the post of President /Director, M.P. Rajya Pawerloom Bunkar Sahakari Sangh Maryadit Burhanpur, copy of which was already on record, despite thereto' the returning officer/respondent no. 2 has completely failed to take note of disqualification of respondent no. 3 (Gyaneshwar Patil) for 5 years expiring on 03-03-2025/06-03-2025 in future w.e.f. the date of order i.e. 03-03-2020/06-03-2020.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 7 EP No. 19 of 2024G. Because, the respondent no. 3 (Gyaneshwar Patil) has committed corrupt practice by giving/filing completely false information in clause 6 of part 3- at page 4 of all the 4 nomination forms (Annexure-P/4 & P/5).
H. Because, respondent no. 3 (Gyaneshwar Patil) instead of furnishing the true and correct information in respect of his disqualification in clause 6 of part 3-"ka" at page 4 of all the 4 nomination forms, the respondent no. 3 (Gyaneshwar Patil) filled/given completely false information as "NO" and "NOT APPLICABLE" which is not only false but such an answer (wordings) has even been restricted by the Constitution Bench of Hon'ble Supreme Court in the precedent laid down in case of Public interest foundation & ors, V/S. U.O.I. & Anr. [reported in AIR 2018 SC 4550 : (2019)3 SCC 224] in para 114 (29.6). Therefore, the election of respondent no. 3 (Gyaneshwar Patil) to fill the seat of Parliamentary Constituency no. 28 Khandwa dated 04-06-2024 as an elected candidate declared by the Returning Officer/respondent no. 2 (Annnexure-P/8) is liable to be quashed.
I. Because, the respondent no. 4/Shri Narendra Patel (a candidate of Indian National Congress Party) has got second highest number of votes, therefore he his liable to be declared as elected to fill the seat of House of Parliamentary a Constituency no. 28 Khandwa, after the impugned result dated 04-06-2024 is declared to be quashed.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 8 EP No. 19 of 202411. The petition, thus is filed on the three grounds that the returned candidate is disqualified under Section 9 of the Act 1951 being person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State and thus, was disqualified for a period of five years from the date of such dismissal. Further, that the said disqualification was suppressed by him in the nomination form and the affidavit. Thirdly, that the Asstt. Returning Officer despite being incompetent to do so, wrongfully rejected the objections of a third person, namely Shri Luv Joshi.
12. All the aforesaid allegations are founded on Section 9 (1) of the Act of 1951 that states as under :-
9. Disqualification for dismissal for corruption or disloyalty.--(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.
13. There is a vague assertion in the petition that the returned candidate was removed from the office of Director of a Cooperative Society on account of default/embezzlement of funds. The petitioner himself has not made any specific pleadings because merely being a defaulter is one thing and having indulged in corruption/disloyalty is another thing. In Ground para-A, sweeping vague allegations are made as under :-
".....he was dismissed/terminated for the allegation of defaulter/embezzlement of lacs of loan amount/public money/ disloyalty /corruption, from the post of President/Director, M.P. Rajya Powerloom-Bunkar Sahakari Sangh Maryadit Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 9 EP No. 19 of 2024 Burhanpur by the Commissioner/Senior authority of State Govt. of M.P. vide order dated 03-03-2020/06-03-2020."
14. To buttress the assertion, in para-6 of the petition (factual para), the following pleading has been made :-
That, the aforesaid statement/answer filled -by the respondent no. 3 (Shri Gyaneshwar Patil) in the nomination form for the said query no. 6 of part 3 & at page no. 4 (in all of the 4 nomination forms i.e. Annexure-P/4 & P/5) is/was completely false even in the knowledge of respondent no. 3 (Shri Gyaneshwar Patil), because the respondent no. 3 (Shri- Gyaneshwar Patil) was terminated ("padchyut") due to defaulter of payment of Rs. 71,85,517 / Rs. 19,16,577 individually & Rs. 1,56,85,242 / Rs. 51,73,774 through his firm) from the post of President/Director, "M.P. RAJYA POWERLOOM BUNKAR SAHKARI SANGH MARYADIT, BURHANPUR (EARLIER NAME-THE POWERLOOM CO-
OPERATIVE MARKETING FEDERATION LIMITED BURHANPUR- REGD. NO. DR/KWA/42 DATED 01-03- 1973)" which is said to be "FEDERATION" by the office of the State Government/Commissioner Bhopal vide order dated 03-03- 2020 under the provision of "M.P. Co-Operative Society Act 1960". A Copy of said order dated 03-03-2020 forwarded to Dy. Commissioner vide order dated 06-03-2020 certified copy of which issued by Public Information Officer General Election 2024, Distt. Khandwa is annexed as ANNEXUREP/6.Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 10 EP No. 19 of 2024
(emphasis supplied)
15. As noted above, the pleadings in para-6 state that the elected candidate was a defaulter, while in the grounds, the allegation of embezzlement has also been inserted. Therefore, the pleadings are self- contradictory and do not seem to contain material particulars. The petitioner relies on removal order annexure P-6 to make all the allegations.
16. Even if at this stage, the document annexure P-6 is taken to be true at its face value, it reads as under :-
कायालय आयु त सहका रता एवं पंजीयक सहकार सं थाय म. . भोपाल ::आदे श::
(म. . सहकार सोसायट अिधियम 1960 क धारा 50-ए/क(2) के अंतगत) म य दे श रा य पावरलूम बुनकर सहकार संघ मया. जला बुरहानपुर म. . के अ य ी ाने र पा टल के व ा िशकायत क जां च उपयु सहका रता जला ख डवा ारा क जाकर जांच ितवेदन मांका/िशका. 453, दनांक 29.05.2019 के ारा तुत कया गया। उपायु सहका रता जला ख डवा ारा तुत जांच ितवेदन के पर ण से प हुआ है क ी ाने र पा टल म. . पावरलूम बुनकर संघ मया. बुरहानपुर के संचालक पद पर दनांक 18.02.2017 को िनवािचत हुये थे, त प ात संघ के अ य पद पर िनवािचत हुए। ी ाने र पा टल िसट जन को-ऑपरे टव बक बुरहानपुर के दनांक 10.02.2017 क थित म रािश 71,85,517/- के बकायादार थे। एकमु त समझौता योजना क गणना के अनुसार बकाया रािश . 71,85,517/- म से . 46,03,081/ क छूट द जाकर वसूली अयो य रािश . 25,55,436/ दनांक 10.02.2017 को चार समान क त म से एक वष म जमा करने हे तु समझौता कया गया था। उ रािश म से दनांक 10.02.2017 को थम क त रािश . 6,38,859 जमा क गई। अतः ी ाने र पा टल दनांक 10.02.2017 क थित पर शेष रािश . 19,16,577.00 के िलये डफा टर थे। ी ाने र पाट ल मेसस यम केला स लायस बुरहानपुर ो ायटर ह यह फम िसट जन को-ऑपरे टव बक िलिमटे ड बुरहानपुर क दनांक 10.02.2017 क थित पर कुल रािश . 1,56,85,242.83 क बकायादार थी। एकमु त समझौता योजना क गणना अनुसार बकाया रािश .
1,56,85,242.83 म से . 87,86,878/- क छूट द जाकर वसूली यो य रािश .
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 11 EP No. 19 of 202468,98,365/- दनांक 10.02.2017 को चार समान क त म एक वष म जमा करने हे तु समझौता कया गया था। उ रािश म से दनांक 10.02.2017 को थम क त रािश . 17,24,591/- जमा क गई। अतः मेसस यम केला स लायस बुरहानपुर, जसके ो ायटर ी ाने र पा टल है दनांक 10.02.2017 क थित पर शेष रािश . 51,73,774.00 के िलये डफॉ टर थी। उ से प है क ी ाने र पा टल म. . रा य पावरलूम बुनकर सहकार संघ मया. बुरहानपुर के िनवाचन हे तु सहकार अिधिनयम क धारा 50-एक (1) के अंतगत संचालक मंडल के सद य के िनवाचन के िलये अ यथ होने के िलये अ याथ होने के िलये vfgZr ugha थे।
म. . सहकार सोसायट अिधिनयम 1960 क धारा 50-ए/क (2) म िन नानुसार ावधान है :- " कसी सोसायट के कसी पद पर िनवािचत कया गया कोई य ऐसा पद धारण करने से वरत हो जाएगा य द वह उस सोसायट या कसी अ य सोसायट के ित 12 माह से अिधक क कालाविध के िलये उसके ारा िलये गए कसी उधार या अ ीम के िलये यित मी रहता है और र ज ार उसके थान को र घो षत करे गा।" संचालक मंडल ारा ी पा टल को अ य संचालक पद से िनहरता अ जत करने के प ात भी संघ के संचालक/अ य पद से पृथक नह ं कया गया है ।
उ धारा 50-ए/क (2) के अंतगत ी ाने र पा टल अ य , म. . रा य पावरलूम बुनकर सहकार संघ मया., बुरहानपुर को कायालयीन कारण बताओ सूचना प मांक/ व वध/02/2019/105 दनांक 27.08.2019 जार कया जाकर इस संबध ं म अपना प रखने हे तु लेख कया जाकर क य न आपको सं था म. . रा य पावरलूम बुनकर सहकार संघ मया., बुरहानपुर के अ य एवं संचालक पद से पृथक कर दया जाये, सुनवाई हे तु दनांक 03.09.2019 िनयत क गई थी। दनांक 03.09.2019 को ी पा टल ने उप थत होकर आवेदन तुत कर अपना जवाब तुत करने हे तु 25 दवस का समय दये जाने का िनवेदन कया गया जसे आंिशक प से वीकार करते हुये 15 दवस का समय दया जाकर आगामी ितिथ दनांक 17.09.2019 िनयत क गई। दनांक 17.09.2019 को भी ी पा टल ने उप थत होकर आवेदन तुत कर अपना जवाब तुत करने हे तु 60 दवस का समय दये जाने का िनवेदन कया गया, जसे अमा य करते हुए अंितम प से 7 दवस का समय दया जाकर आगामी ितिथ दनांक 24.09.2019 िनयत क गई। दनांक 24.09.2019 को ी पा टल ने उप थत होकर आवेदन तुत कया गया जसम लेख कया गया क धारा 50-ए/क उन पर लागू नह ं होती साथ ह अपना जवाब तुत करने हे तु भी समय चाहा गया। उनके आवेदन का पर ण करने के उ े य से आगामी ितिथ दनांक 15.10.2019 िनयत क गई। दनांक 16.10.2019 को ी पा टल क ओर से अिधव ा ीमती सोिनया स सेना ारा उप थत होकर उ र प तुत करने हे तु समय चाहा गया, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 12 EP No. 19 of 2024 जसे वीकार कया जाकर आगामी ितिथ दनांक 22.10.2019 िनयत क गई। दनांक 22.10.2019 को ी पाट ल क ओर अिधव ा ीमती सोिनया स सना एवं िशकायतकता ी राकेश साईवाल, लखेरवाड , बुरहानपूर अिधव ता के साथ उप थत हुए दोन अिधव ाओं के तक वण कये गये।"
करण म संल न अिभलेख एवं अिधव ाओं के तक के अनुशीलन के उपरांत प है क ी पा टल का तक, क धारा 50-ए/क के ावधान उन पर लागू न होकर धारा 48-कक के ावधान ह लागू होते ह य क िनवािचत संचालक के िलये पारा 48-कक के ावधान लागू होते ह, मा य यो य नह ं है य क धारा 50-ए/क म ह जब यह प ावधान है क " कसी सोसायट के कसी पद पर िनवािचत कया गया य , ऐसा पद धारण करने से वरत हो जाएगा य द वह उस सोसायट या कसी अ य सोसायट के ित 12 माह से अिधक क कालाविध के िलये उसके ारा िलये गए कसी उधार या अ ीम के िलये यित मी रहता है ।" यहां 'िनवािचत कया गया य ' से प आशय है क य द कोई य िनवािचत कया जा चुका है , भी य द यित मी पाया जाता है तो पद धारण करने से वरत हो जायेगा।
अतएव मुझे इस त य का पूण समाधान हो जाने से, क ी ाने र पा टल अपने िनवाचन के समय यित मी थे तथा ऐसी थित म उनके पद से वरत होने क ह वैधािनक थित िनिमत होती है । अतः म, डॉ. एम. के. अ वाल पंजीयक सहकार सं थाय म. ., म. . सहकार सोसायट अिधिनयम, 1960 क धारा 50- एक (2) के ावधान अंतगत ी ाने र पा टल ारा धा रत पद (अ य /संचालक, म. .
रा य पावरलूम बुनकर सहकार संघ मया., बुरहानपुर) को र घो षत करता हूँ। उ र पद से संबंिधत आव यक कायवा हयां क जाव।
यह आदे श आज दनांक 03.03.2020 को मेरे ह ता र एवं कायालयीन पद
मु ा से जार कया गया।
(डॉ. एम. के. अ वाल)
आयु सहका रता एवं पंजीयक
सहकार सं थाय, म. .
भोपाल
It is clear from a perusal of the aforesaid document, that the returned candidate has been removed from the elected office of Director of a Cooperative Society under Section 50-A of the M.P. Cooperative Societies Act, 1960 which creates a disqualification for being an elected office bearer Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 13 EP No. 19 of 2024 if the candidate is a defaulter of the society concerned or of any other society. The returned candidate was held to be defaulter of Citizen Cooperative Bank Ltd., Burhanpur (MP) in respect of certain loans taken by him as businessman from the said Bank as on 10.2.2017 which was the date of nomination for election to Director of some different society (M.P. Rajya Powerloom Bunkar Sahkari Sangh Maryadit, Burhanpur). Section 50-A (1) and (2) reads as under:-
50-A. Disqualification for being candidate or voter for election to Board of Director or representative or delegate of society.-
(1) No person shall be qualified to be a candidate for election as member of the Board of Directors, representative or delegate of the society if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him.
(2) A person elected to an office of a society shall cease to hold such office, if he is in default for a period exceeding 12 months to the society or any other society for any loan or advance taken by him, and the Registrar shall declare his seat vacant: Provided that a person elected to an office of a co- operative bank from a society other than co-operative credit structure, shall cease to hold such office, if such society commits default for any loan or advance for a period exceeding three months, and the Registrar shall declare his seat vacant.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 14 EP No. 19 of 202417. It becomes clear that even as per the contents of the document Annexure P-6, the returned candidate was held to be defaulter of a loan taken from Citizen Cooperative Bank (as a independent businessman) as on 10.2.2017 when he was nominated for election to the office of Director of another society, namely M.P. Rajya Powerloom Bunkar Sahkari Sangh Maryadit, Burhanpur (EARLIER NAME-THE POWERLOOM CO- OPERATIVE MARKETING FEDERATION LIMITED BURHANPUR). This document annexure P-6, even if taken to be proved, does not indicate that the returned candidate was removed from any office under the State or Central Government for any charges of corruption and disloyalty.
18. Apart from relying on the order Annexure P-6, no averments are made, nor any instances of any removal on allegations of corruption or disloyalty have been narrated in terms of Section-9 of the Act of 1951.
19. In the case of Eldeco Housing and Industries Limited Versus Ashok Vidyarthi and Others, reported in 2023 SCC Online SC 1612, the Supreme Court has held as under :-
19. The law applicable for deciding an application under Order VII Rule 11 CPC was summed up by this Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives18.
Relevant parts of paragraph 23 thereof are extracted below:
"23 to 23.1 x x x 23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 15 EP No. 19 of 2024 adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words:
"12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 16 EP No. 19 of 202423.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512], read in conjunction with the documents relied upon, or whether the suit is barred by any law.
xxxxxxxxx 23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139) Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 17 EP No. 19 of 2024 "139. 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 their entirety, a decree would be passed."
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 18 EP No. 19 of 2024 defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC
315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823.
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint."
(Emphasis supplied)
20. In Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC 238, Supreme Court has delineated the distinction between material facts and material particulars so far as election petitions are concerned, and has held as under :-
29. Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of Peoples Act. Here we have to consider Sections 81, 83 and 84 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 19 EP No. 19 of 2024 more of the grounds specified in sub-section (1) of Section 100 and Section 101. That as we have shown above creates the substantive right. Section 83 then provides that the election-
petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also 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. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars 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. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 20 EP No. 19 of 2024 will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficiency of the words "material facts" will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be co-related to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 21 EP No. 19 of 2024 Section 86 although the penalty of dismissal is taken away. Sub-section (5) of that section provides:
"(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition." One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contract in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is, however, a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 22 EP No. 19 of 2024 is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law there are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action.
21. The test which is required to maintain an election petition was considered by the Hon'ble Supreme Court in the case of Kanimozhi Karunanidhi v. A Santhana Kumar and others (2023 SCC Online SC
573) wherein the Hon'ble Supreme Court has considered the requirement of Section 83(1)(a) of the Act of 1951, which reads as follows-
"23. 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 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 23 EP No. 19 of 2024 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."
22. In the case of Ramsukh v. Dinesh Agrawal reported in (2009)10 SCC 541 and Harishankar Jain v. Sonia Gandhi reported in (2001) 8 SCC 233 wherein it has been held -
"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 20 the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 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.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 24 EP No. 19 of 2024Material 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 timelimit 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 action. To enable a court to reject a plaint on the ground that it does not disclose 21 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."
23. In case of Mahadeorao Sukaji Shivankar v. Ramratan Bapu :
(2004) 7 SCC 181 the Hon'ble Supreme Court had an occasion to consider the aspect that what amounts to material facts in an election petition. The said expression has not been defined under the Act or under the Code.
However, the Hon'ble Supreme Court held "material facts are all basic and primary facts which must be proved at trial by the party to establish existence of cause of action or defence and must be stated in a pleading by the party. The cause of action should be specifically mentioned in the election petition.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM 25 EP No. 19 of 202424. In view of the aforesaid factual position in the case and the legal position as culled out from statutory provisions and the judgments of the Supreme Court, it can safely be said that the facts pleaded do not constitute a cause of action to set into motion, extra-ordinary jurisdiction vested in the High Court in an election petition. The petition cannot be allowed even if the pleadings and documents as made available with the petition are accepted and treated to be true at their face value. No material fact has been pleaded with the petition alleging dismissal of the returned candidate from office under the State or Central Government for allegations of disloyalty or corruption. No fact has been pleaded that the dues to the Bank as standing on 10.2.2017 in capacity of businessman were on account of corruption and disloyalty towards any office held under the Government. All other grounds like suppression of fact of dismissal for charges of corruption and disloyalty, improper acceptance of a disqualified candidate's nomination, etc. revolve on the ground of disqualification, for which the election petition miserably suffers from lack of material facts.
25. In view of the above finding, other grounds on which rejection was sought, are not being taken in consideration as consideration of the same is not required.
26. Consequently, IA No. 19877/2024 is allowed and the election petition is rejected.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 10/18/2024 6:49:06 PM