Gujarat High Court
Rahul Vasudevbhai Vyas vs Hemang Yogeshbhai Joshi on 12 December, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/EP/3/2024 JUDGMENT DATED: 12/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 3 of 2024
With
R/ELECTION APPLICATION NO. 12 of 2024
In
R/ELECTION PETITION NO. 3 of 2024
With
R/ELECTION APPLICATION NO. 14 of 2024
In
R/ELECTION PETITION NO. 3 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
========================================================
Approved for Reporting Yes No
========================================================
RAHUL VASUDEVBHAI VYAS
Versus
HEMANG YOGESHBHAI JOSHI & ORS.
========================================================
Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MR YASH N NANAVATY(5626) for the Respondent(s) No. 1
MR. SAHIL M SHAH(6318) for the Respondent(s) No. 2,3
MR ND NANAVATY SENIOR ADVOCATE WITH MR. MITUL SHELAT AND
MS DISHA N NANAVATY(2957) for the Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 12/12/2024
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. N.D. Nanavaty with learned Advocate Mr. Mitul Shelat and learned Advocate Ms. Disha Nanavaty on behalf of the applicant- original respondent no.1 and party-in-person-Mr. Rahul Vasudevbhai Vyas for himself as the respondent no.1- original petitioner and learned Advocate Mr. Sahil M. Shah with learned Advocate Mr. Taukib M. Mandli for respondents no.2 and 3 - original respondents no.2 and 3. [ The Page 1 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined parties shall hereinafter be referred to as per their status in the Election Petition].
2. By way of this application under Order VII Rule 11 (c) (d) of the Code of Civil Procedure read with Sections 81, 82, 83 and 84 of the Representation of Peoples Act, 1951 ( hereinafter referred to as ' The RP Act, 1951" for short ) the respondent no.1 has prayed that this Court may reject election petition preferred by the original petitioner -party-in-person.
2.1 Briefly stated, the original petitioner and respondent no. 1 had contested elections to the Lok Sabha in the Vadodara- 20 constituency, which was held on 07.05.2024. The applicant-original respondent no. 1 had secured the highest number of votes and had been declared as elected, whereas the original petitioner, who had contested the election as an independent candidate, had lost the election. The original petitioner had thereafter preferred Election Petition No. 3 of 2024, inter alia seeking to declare election of the original respondent no. 1 as void and whereas certain other prayers had also been sought for. This Court having issued summons to the respondents, the original respondent no. 1, had filed his written statement as well as Election Application No. 12 of 2024 i.e. the present election application. On the other hand respondents no. 2 and 3 i.e. The Returning Officer and the Election Commission of India had preferred Election Application No. 14 of 2024, seeking for a declaration that the Returning Officer and Chief Electoral Officer are not necessary parties and could not be joined in the election petition and that they may be deleted from the array of party Page 2 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined respondents.
3. Since the application preferred by the original respondent no.1, was the first in priority and considering that he was seeking for a prayer to reject the election petition itself, the said application had been heard by this Court.
4. Leaned Senior Advocate Mr. Nanavaty appearing for original respondent no. 1 would at the outset take this Court extensively through the provisions of the RP Act, 1951 more particularly to the relevant provisions which have a bearing on the issue in question.
5. Learned Senior Advocate would take this Court through Section 100 of the RP Act, 1951 and would submit that Section 100 inter alia states the grounds for declaring an election to be void by the High Court, more particularly learned Senior Advocate would lay emphasis on Section 100(1)(d) and submit that the requirement for declaring the election of a returned candidate to be void would be on the ground of the result of the election concerning the returned candidate has been materially effected by the aspects found in Section 100(1)(d)(i) to (iv). It is submitted that sub-sections d(i) to (iv) state about improper acceptance of nomination, a corrupt practice had been committed or an improper rejection, refusal of rejection of any vote or there has been non compliance with provisions of the Constitution or of the said Act or Rules or Orders made thereunder. It is submitted by learned Senior Advocate that what has to be appreciated is whether the election has been materially effected or not on account of the aspects mentioned. It is submitted by learned Page 3 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined Senior Advocate that the entire Election Petition is bereft of any averments that the election had been materially effected on account of the petitioner indulging in any of the acts as mentioned in Section 100(d)(i) to (iv) or even otherwise on the other issues.
5.1 Learned Senior Advocate would thereafter rely upon Section 83 of the RP Act, 1951 and would submit that the requirements of the said section which lays down the required content in an election petition i.e. concise statement of material facts, full particulars of corrupt practice, including full statements of the possible parties to the corrupt practice and date and place of the commission thereof as well as a verification by the petitioner as provided in the Code for Civil Procedure. It is submitted by the learned Senior Advocate that the requirement of Section 83 has not been complied with at all.
5.2 Learned Senior Advocate would also rely upon proviso which states about affidavit in the prescribed format being required to be filed if an allegation of corrupt practice has been made and whereas it is submitted that such affidavit has not been filed.
5.3 Learned Senior Advocate would thereafter rely upon Section 84 of the RP Act, 1951 and would submit that while the petitioner of an election petition is entitled to claim a declaration that election of returned candidate is void; and further claim a declaration that he himself or any other candidate has been duly elected, yet, the prayers made in the petition are beyond the scope of Section 84 of the RP Act.
Page 4 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined 5.4 Learned Senior Advocate would thereafter rely upon Section
86 of the RP Act 1951 and would submit that under Section 86(1) of the Act the High Court would dismiss an Election Petition which did not comply with the requirement of sections 81 or 82 of the or section 117.
6. Learned Senior Advocate would thereafter draw the attention of this Court to the pleadings in the Election Petition. Learned Senior Advocate would submit that while paragraphs no. 2.1 to 2.3 state the facts whereas paragraphs no. 3.1 to 3.5 are the grounds of challenge. Learned Senior Advocate would submit that five grounds have been raised namely (1) improper acceptance of nomination;
(2) non compliance of Rules;
(3) violation of Code of Conduct;
(4) illegal practices and (5) violation of constitutional rights.
7. Learned Senior Advocate would submit that none of the grounds either refer to any corrupt practice indulged into by the original respondent no. 1 nor does the averments make out a case as to how the results were materially effected. Learned Senior Advocate would thereafter rely upon decision of Hon'ble Supreme Court in case of Ram Sukh vs. Dinesh Aggrawal reported in 2009 (10) SCC 541 and would submit that the Hon'ble Supreme Court has in the said decision inter alia held, relying upon earlier decisions that omission of the single material fact would lead to incomplete cause of action and that an Election Petition without material facts is not an Page 5 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined Election petition at all. Learned Senior Advocate would further submit that the Hon'ble Supreme Court had inter alia reiterated that all facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate under Section 83(1)(a) of the Representation of Peoples Act, 1951 and an Election Petition suffering from such a vice could be dismissed.
7.1. Learned Senior Advocate would further submit that as per the law laid down by the Hon'ble Supreme Court in the above decision explaining the scope and ambit of Section 100 of RP Act, 1951, in order to get an election declared as void the petitioner should make appropriate averments as regards the election being materially effected.
7.2 Learned Senior Advocate would also emphasize that the Hon'ble Supreme Court in the said decision had scrutinized the pleadings of the election petition and had come to a conclusion that averment with regard to election being materially effected was not found and whereas inter alia on such ground, the decision of the Hon'ble High Court rejecting the election petition at the threshold was confirmed.
7.3 Learned Senior Advocate would thereafter rely upon decision of the Hon'ble Supreme Court in case of Mangani Lal Mandal vs. Bishnu Deo Bhandari reported in 2012(3) SCC 314 and would submit that the Hon'ble Supreme Court in the said decision has inter alia laid Page 6 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined down that not only is election petitioner required to plead and prove as regards existence of one of the aspects as found in Section 100(1)
(d) and is also required to plead and prove that the result of election insofar as the returned candidate has been materially affected on account of the same. Learned Senior Advocate would inter alia submit that in absence of pleading as regards suppression by the returned candidate, on which basis the High Court had interfered in the Election Petition, materially effecting the result, the decision of the High Court declaring election of the returned candidate as being void was set aside.
7.4 Learned Senior Advocate would thereafter rely upon recent decision of the Hon'ble Supreme Court in case of Karim Uddin Barbhuiya vs. Aminul Haque Laksar reported in 2024 SCC Online SC
504. Learned Senior Advocate would submit that the Hon'ble Supreme Court in the said decision has inter alia held that pleadings in an election petition have to be precise, specific and unambiguous that if an election petition does not disclose cause of action as relatable to the grounds specified in section 100 of the RP Act, 1951 then the petition is liable to the dismissed in limine. It is also observed that if the pleadings do not confirm with the requirements of Sections 81 and 83 of the RP Act,1951 the petition could be rejected under Order VII Rule 11 of Civil Procedure Code. According to learned Senior Advocate the Hon'ble Supreme Court had examined the election petition and having found that the petition contains bald and vague allegations without any material facts as required to be stated under Section 83(1)(a) of the RP Act, 1951 and furthermore the Hon'ble Supreme Court having come to a Page 7 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined conclusion that election petition lacked concise statement of material facts and also lacks full particulars had dismissed the election petition.
7.5 Learned Senior Advocate referring to the above judgements would submit that the petition is not an election petition as per the requirements of the RP Act, 1951. It is submitted that neither there are full particulars of the fact nor does the petition contain grounds as per Section 100(1) (d) of the RP Act, 1951 nor does the pleading state as to how the alleged malpractices/corrupt practices have materially affected the result of election in favour of the returned candidate. Learned Senior Advocate would submit that as such, none of the grounds referred in Section 100(1)(d)(i ) to (iv), has been made out in the grounds no. 3.1 to 3.5 and therefore, it is submitted that this Court may set aside the election petition under the provisions of the Civil Procedure Code as well as the provisions of the Representation of Peoples Act, 1951.
8. This application is vehemently opposed by the original petitioner - party-in-person. It is submitted by the party-in-person relying upon the reply filed to the present application that the election petition complies with the requirement under the Representation of Peoples Act, 1951 and that the petition discloses clear cause of action and grounds relatable to Section 100(1)(d) have been averred. The party-in-person would in this regard refer to decision of the Hon'ble Supreme Court in case of Ashraf Kokkur vs. K.V. Abdul Khader etc. reported in 2015(1) SCC 129. The party-in-person would submit that since the petition discloses cause of action, the same could not be dismissed in limine and whereas the issues raised in the petition Page 8 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined would have to be tried. The party-in-person would submit relying upon the decision that inquiry under Order VII Rule 11 of Code of Civil Procedure is only as to whether the facts as pleaded disclose a cause of action, and not a complete cause of action. It is further submitted that the Hon'ble Supreme Court has observed that whether a particular fact is material or not is depended on the nature of charge levelled and circumstances of the case and that an election petition could not be dismissed in limine because full particulars of corrupt practice already were not set out. The party-in-person would also take this Court through the law laid down by the Hon'ble Supreme Court in earlier decisions as referred to by the Hon'ble Supreme Court in case of Ashraf Kokkur (supra) and relying upon the same would submit that the election petition is not required to be dismissed in limine.
8.1 The party-in-person has further relied upon decision of the Hon'ble Supreme Court in case of K.K. Ramchandran Master vs. M.V. Sreyamskumar & Ors. reported in 2010 (7) SCC 428. Referring to the said decision party-in-person would submit that the Hon'ble Supreme Court has observed that Section 83 of the RP Act, 1951 requires an election petition to contain a concise statement of material facts and that deficiency in providing particulars of corrupt practice could be made up at a later stage. It is emphasized that a petition is to be dismissed upon the petition not disclosing material facts, not disclosing cause of action, on the ground of deficiency or non disclosure of particulars of corrupt practice only if the election petitioner does not cure the defect inspite of opportunity being given by the Court. The party-in-person has also relied upon observations Page 9 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined of the Hon'ble Supreme Court relying upon earlier decisions to contend that material facts on which party relies for his claim are facta probanda and they must be stated in the pleadings while facts by means of which the facta probanda - material facts, are to be proved are in the nature of facta probantia ( particulars or evidence). The same are not required to be pleaded as they are not fact in issue but they are only relevant facts required to be proved at the trial. The party-in- person would thereafter elaborately take this Court through the written statement to the Election Application and also to the petition itself. Relying thereupon, the party-in-person would submit that the Election Petition contains material facts including allegations of corrupt practices. It is submitted that the petition is not a defective petition as per the provisions of the RP Act, 1951. It is submitted that the petition complies with the requirement of Sections 81, 82, 86 and 117 of the RP Act,1951. It is submitted that the petition discloses a valid cause of action, and hence is not required to be interfered under Order VII Rule 11 of the Code of Civil Procedure. It is submitted that the corrupt practice and its effect on the election has been highlighted. Thus submitting the party-in-person would request this Court not to entertain the application and to reject the same and to decide the election petition on its own merits.
9. In rejoinder learned Senior Advocate would submit that Section 123 of the Representation of Peoples Act, 1951, lays down 8 different circumstances, which would be deemed as corrupt practice and would submit that the entire election petition does not contain a single averment corelatable to any of the said aspects. Learned Senior Advocate would reiterate that the petition is completely bereft of any Page 10 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined cause of action, does not state any material facts and particulars, does not make any allegations or averments as regards corrupt practice and how the same has materially effected the election. That specific averments which are required to be made in the petition with regard to the acts indulged into by returned candidate, which have to be stated with exact facts, has not been specifically stated. In this regard learned Senior Advocate would also rely upon decision of the Hon'ble Supreme Court in case of Azahar Hussain vs. Rajiv Gandhi reported in 1986 Supplementary (SCC )315. Learned Senior Advocate, relying upon the above decision and the submission made, would request this Court to allow the present election application and to dismiss the election petition.
10. Heard learned Senior Advocate on behalf of the original respondent no.1 and the original petitioner as party-in-person and perused the documents on record.
11. Before analyzing the submissions made by both the parties, it would be apposite to first appreciate the legal position as to when an election petition can be dismissed upon non compliance of Sections 81 to 83 and Section 100 of the R P Act, 1951 as well as under the Order VII Rule 11 of the Code of Civil Procedure. In this regard the Court proposes to analyze the decision of the Hon'ble Supreme Court as relied upon by both the parties.
12. Learned Senior Advocate for the original respondent no. 1 has relied upon decision in case of Ram Sukh vs. Dinesh Aggrawal (supra) and whereas paragraphs no. 20, 21, 22, 23 and 24 being Page 11 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined relevant for the present purpose are reproduced hereinbelow for benefit:
"20. The issue was again dealt with by this Court in Azhar Hussain Vs. Rajiv Gandhi. Referring to earlier pronouncements of this Court in Samant N. Balkrishna (supra) and Udhav Singh Vs. Madhav Rao Scindia wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the (1972) 1 SCC 214 1986 (Supp) SCC 315(1977) 1 SCC 511 mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice.
21. We may now advert to the facts at hand to examine whether the election petition suffered from the vice of non-disclosure of material facts as stipulated in Section 83(1)(a) of the Act. As already stated the case of the election petitioner is confined to the alleged violation of Section 100(1)(d)(iv). For the sake of ready reference, the said provision is extracted below:
"100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
* * *
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected * * *
(iv) by any non--compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
It is plain that in order to get an election declared as void under the said provision, the election petitioner must aver that on account of Page 12 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected.
22. As already stated, in the present case, the allegation of the election petitioner is that the Returning Officer failed to circulate the attested signatures of his election agent to various polling stations and, therefore, failed to comply with para 12 of Chapter VII of the Handbook for Returning Officers. The pleadings in the election petition, in relation to grounds (i) and (ii), extracted in para 2 above, were as under:
"11. That due to aforesaid inaction of the Returning Officer the polling agent of the petitioner was not permitted to function till 3.00 P.M. by which time more than 80% polling was over. This inaction on the part of Returning Officer materially affected the election as almost all other polling agents of the petitioner working in other polling stations got confused and supporters of the petitioner either returned back or voted for congress candidate.
12. That the Returning Officer was duty bound to send required Praroop of the petitioner and his agent's signature one day before the day of election which he did not do. Due to his inaction of the Returning Officer the election of 13 Laxman Chowk Legislative Assembly Constituency was materially affected."
23. There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent were circulated 80% of the polling was over and because of the Page 13 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being "material facts" as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling.
24. It needs little reiteration that for purpose of Section 100(1)
(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition."
13. The Hon'ble Supreme Court in the above quoted portion referring to earlier decisions of the Hon'ble Supreme Court laid down that omission of a single material fact would lead to an incomplete cause of action. It is also held that an election petition without material facts is not an election petition at all. It is further held that all facts which are essential to ensure that the petition reveals complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83 (1)(a) of the Representation of Peoples Act, 1951 and on such count, the election petition 'can be and must be dismissed if it suffers from any such vice'. It is further observed that the election petitioner must make appropriate averments in the petition and on account of non- compliance with the provisions of Constitution of India or Representation of Peoples Act, 1951 or Rules or Orders made thereunder, the result of the election with regard to the returned candidate was materially effected. The Hon'ble Page 14 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined Supreme Court inter alia holding that material facts as contemplated in Section 83(1)(a) of the Representation of Peoples Act, 1951, are required to be averred to constitute a complete cause of action in relation to allegation under Section 100 (1)(d)( iv) of the Act.
13.1 From the above position it becomes clear that an election petition should state all the material facts for making out a complete cause of action and omission of a single material fact would lead to an election petition being dismissed on the ground of non-fulfillment of mandate of Section 83(1)(a) of the Representation of Peoples Act, 1951. It also becomes clear that for the purpose of Section 100 (1) (d)
(iv) the election petitioner is required to specifically state as to how the result of the election insofar as the returned candidate was materially effected. In absence of the same, a complete cause of action could not be said to have been pleaded resulting in the petition being dismissed.
14. Learned Senior Advocate for the original respondent no. 1 has relied upon decision of the Hon'ble Supreme Court in case of Mangani Lal Mandal vs. Bishnu Deo Bhandari (supra) and whereas paragraphs no.10 to 13 of the said decision being relevant for the present purpose are reproduced hereinbelow for benefit:
"10. A reading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a returned candidate is alleged to be guilty of non- compliance of the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerned the returned candidate has been materially affected Page 15 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined by such breach or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non- compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non-compliance of the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate could be declared void.
11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). The sine qua non for declaring election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non- observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non- observation or non-compliance of the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1)(d)(iv). For the election petitioner to succeed on such ground viz.,Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in (1) Jabar Singh Vs. Genda Lal3; (2) L.R. Shivaramagowda and Others Vs. T.M. Chandrashekhar (dead) by Lrs. And ) an Others.4 and (3) Uma Ballav Rath (Smt.) Vs. Maheshwar Mohanty.
12. Although the impugned judgment runs into 30 pages, but unfortunately it does not reflect any consideration on the most vital aspect as to whether the non-disclosure of the information concerning the appellant's first wife and the dependent children born out of that wedlock and their assets and liabilities has materially affected the result of the election insofar as it concerned the returned candidate. As a matter of fact, in the entire election petition there is no pleading at all that suppression of the information by the returned candidate in the affidavit filed along Page 16 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined with the nomination papers with regard to his first wife and dependent children from her and non- disclosure of their assets and liabilities has materially affected the result of the election. There is no issue framed in this regard nor there is any evidence let in by the election petitioner. The High Court has also not formed any opinion on this aspect.
13. We are surprised that in the absence of any consideration on the above aspect, the High Court has declared the election of the returned candidate to the 15th Lok Sabha from the Jhanjharpur Parliamentary Constituency to the void. The impugned judgment of the High Court is gravely flawed and legally unsustainable. As a matter of law, the election petition filed by the election petitioner deserved dismissal at threshold yet it went into the whole trial consuming Court's precious time and putting the returned candidate to unnecessary trouble and inconvenience."
15. Considering the above quoted paragraphs it would clearly appear that the Hon'ble Supreme Court has inter alia laid down that for an election petition to succeed under Section 100(1)(d)(iv) the petitioner should plead and prove that there has been breach as laid down in the said provision which has resulted in the election insofar as it concerns the returned candidate has been materially effected. It would be pertinent to mention here that the decision of the Hon'ble Supreme Court was in a situation where the High Court after leading and recording of evidence in the trial had set aside the election of the candidate and whereas the Hon'ble Supreme Court had on the ground of suppression by the returned candidate, had set aside the decision of the High Court. While the Hon'ble Supreme Court was dealing with the final judgement, and whereas this Court is considering an application for rejecting the election petition yet, the observation of the Hon'ble Supreme Court that on the legal aspect as laid down by the Hon'ble Supreme Court the election petition was required to be dismissed, would, permit this Court to rely upon the Page 17 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined law laid down though the circumstances are not quite similar.
16. The learned Senior Advocate appearing for the original respondent has also relied upon the decision of the Hon'ble Supreme Court in case of Azhar Hussain vs. Rajiv Gandhi (supra). At this stage it is required to be mentioned that while the propositions as laid down by the Hon'ble Supreme Court in the above decision has been reiterated by the Hon'ble Supreme Court in the above quoted decision, yet, for the sake of benefit, paragraph no. 14 where the Hon'ble Supreme Court has explained the scope and ambit of the expression "material facts and particulars" being relevant for the present purpose is reproduced hereinbelow for benefit:
"14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression `material facts and particulars', which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act.
"(1) What are material facts and particulars ? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition.
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a Government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded.
a) mode of assistance;
b) measure of assistance; and
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C/EP/3/2024 JUDGMENT DATED: 12/12/2024
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c) all various forms of facts pertaining to the assistance. (3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of Government servants in election it is absolutely essential to plead the following :
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election- candidate for promoting the prospects of his election (4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured (5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered."
17. On the other hand, the party-in-person has relied upon decision of the Hon'ble Supreme Court in case of Ashraf Kokkur vs. K.V. Abdul Khader etc. (supra). Paragraphs no. 25, 26, 27, 28, 29, 30, 31, 32, and 33 being relevant for the present purpose are reproduced hereinbelow for benefit:
"25. After all, the inquiry under Order VII Rule 11(a) of CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression 'material facts' plainly means facts pertaining to the subject matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial (see Philipps v. Philipps and others; Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and others).
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26. This Court in Azhar Hussain v. Rajiv Gandhi, at Paragraph- 11, has held that:
"11. ... Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. ..." The charge levelled is that the respondent holds an office of profit as the Chairperson of the Kerala State Wakf Board and in that capacity he enjoys the profits attached to that office from the Government of Kerala.
27. In V.S. Achuthanandan v. P.J. Francis and another, a three- Judge Bench of this Court has taken the view that only because full particulars are not given, an election petitioner is not to be thrown out at the threshold. To quote Paragraph-15:
"15. ... An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. It is, therefore, evident that material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. Whether in an election petition a particular fact is a material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case. .."
28. Again at Paragraph-16 of V.S. Achuthanandan case (supra), it was held that:
"16. ... So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. ..." xxx xxx xxx "... the failure of the pleadings to disclose a reasonable cause Page 20 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined of action is distinct from the absence of full particulars.
..." (Emphasis supplied)
29. In Hari Shanker Jain v. Sonia Gandhi , a three-Judge Bench of this Court held that the expression 'cause of action' would mean facts to be proved, if traversed, in order to support his right to the judgment of the court and that the function of the party is to present a full picture of the cause of action with such further information so as to make opposite party understand the case he will have to meet. To quote Paragraph-23:
"23. ... The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time- limit prescribed for filing the election petition."
30. In Syed Dastagir v. T.R. Gopalakrishna Setty, while referring to the pleadings, it has been held at Paragraph-9 that:
"9. ... In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science Page 21 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. ..." " ... So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."
31. In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, this Court at Paragraph-12 held that:
"12. ... The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint."
32. In a recent decision in , Ponnala Lakshmaiah v. Kommuri Pratap Reddy and othersthis Court had held at Paragraphs-17 and 29 that:
"17. ... The courts need to be cautious in dealing with requests for dismissal of the petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed." (Emphasis supplied) xxx xxx xxx "29. ... An Page 22 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined election which is vitiated by reason of corrupt practices, illegalities and irregularities enumerated in Sections 100 and 123 of the Act cannot obviously be recognised and respected as the decision of the majority of the electorate. The courts are, therefore, duty-bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hypertechnical in their approach and without being oblivious of the ground realities."
33. Finally, as cautioned by this Court in Raj Narain v. Indira Nehru Gandhi and another , it was held that:
"19. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it. ..."
(Emphasis supplied)"
17.1. Considering the above observations of the Hon'ble Supreme Court it would appear that in exercise of powers under Order VII Rule 11 (a), the inquiry which the Court is required to conduct is to find out whether the facts pleaded disclosed any cause of action, as against a complete cause of action. It is further held that the Court is not required to reject a petition on the ground that it is not likely to succeed rather the Court has to consider whether the claim discloses some cause of action or question which are required to be decided. It is also observed relying upon decision of the Hon'ble Supreme Court in case of Harishankar Jain vs. Sonia Gandhi reported in 2001(8) SCC 223 that the election petitioner is required to present a full picture of cause of action and whereas it also appears from the quoted paragraph in case of Harishankar Jain that failure to plead Page 23 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined material facts is fatal to the election petition and no amendment of pleadings is permissible to introduce such material facts after the time limit prescribed for filing the election petition.
18. The party-in-person has also relied upon decision of the Hon'ble Supreme Court in case of K.K. Ramchandran Master vs. M.V. Sreyamakumar & Ors. (supra) and whereas paragraphs no. 5, 6, 7, 8, 9 and 10 being relevant for the present purpose are reproduced hereinbelow for benefit:
"5. The provisions of Section 83 (supra) have fallen for interpretation in several cases leading to a long line of decisions that have understood the said provisions to mean that while an election petition must necessarily contain a statement of material facts, deficiency if any, in providing the particulars of a corrupt practice could be made up by the petitioner at any later stage. The provision has been interpreted to mean that while a petition that does not disclose material facts can be dismissed as one that does not disclose a cause of action, dismissal on the ground of deficiency or non-disclosure of particulars of corrupt practice may be justified only if the election petitioner does not despite an opportunity given by the Court provide the particulars and thereby cure the defect. We do not consider it necessary to refer to all the decisions delivered on the subject as reference to some only of such decisions shou ld in our opinion suffice.
6. In Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC 238 this Court held that Section 83 was mandatory and requires the election petition to contain a concise statement of material facts and the fullest possible particulars of the corrupt practices if any alleged. The use of word "material facts" observed by the Court shows that facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact could consequently lead to an incomplete cause of action. The function of particulars is Page 24 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined however only to present a full picture of the cause of action with such further information in detail as is sufficient to make the opposite party understand the case he is called upon to meet. There may be some overlapping between material facts and particulars but the two are quite distinct, observed the court. Material facts will show the ground of corrupt practice and the complete cause of action while particulars will give necessary information to present a full picture of the same.
7. In Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850, this Court had another opportunity to interpret the provisions of Section 83 and to cull out the principles that would determine whether an election petition complied with the requirement of the said provision. This Court cautioned that just because a corrupt practice has to be strictly proved did not mean that a pleading in an election proceedings should receive a strict construction. Even a defective charge, observed the Court, did not vitiate a criminal trial unless it was proved that the same had prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction and be slow in dismissing an election petition lest it frustrates an action only on technical grounds. The court also observed that a charge of corrupt practice is no doubt a very serious charge but the court has to consider whether the petitioner should be refused an opportunity to prove the allegations made by him merely because the petition was drafted clumsily. The following passages from the decision in Raj Narain's case (supra) are apposite in this regard:
"While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX The charge of corrupt practice in an election is a very serious charge. Purity of election is the very essence of real Page 25 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations? Should the court refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did not know the language of the law. We have no hesitation in answering those questions in the negative.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxxxxxxx If the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Rules of pleadings are intended xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxx as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed a rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it."
8. The above principles have been reiterated by this Court in H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217; V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737; Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261 and Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196.
9. Reference may also be made to Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511, where this Court reiterated the distinction between material facts and particulars and held that while material facts are primary and basic facts which must be pleaded by the plaintiff, particulars are details in support of such material facts. They simply amplify, refine and embellish the material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it more clear and informative. Particulars thus ensure conduct of a fair trial so that the opposite party is not taken by surprise. To the same effect is the decision of Page 26 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined this Court in Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740, where the Court held that even if the respondents raised an objection in his counter affidavit and the appellant had despite the opportunity to cure the defect pointed out by the respondent did not do so yet an election petition cannot be dismissed on the ground that the petitioner had not cured any such defects. The petitioner was entitled to bona fide believe that the petition is in all respects complete and if the High Court found it otherwise it would give an opportunity to him to amend or cure the defect. This court also held that while dealing with election petitions the Court should not adopt a technical approach only to dismiss the election petitions on the threshold.
10.In Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617, this Court made a distinction between the need for supporting material facts and the means by which such facts are proved by the party alleging the same:
"There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facts probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facts probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
18.1 The Hon'ble Supreme Court has inter alia laid down that while a petition that does not disclose material facts can be dismissed, whereas dismissal on the ground of deficiency or non-disclosure of particulars of corrupt practice may be justified only if the election petitioner does not despite an opportunity being given by the Court provide the particulars and thereby cured the defects. It has been held that Section 83 mandates an election petition to contain a concise statement of material facts and fullest possible particulars of corrupt practice if alleged. The term "material fact" is held to be facts necessary to formulate a complete cause of action. The Hon'ble Page 27 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined Supreme Court also reiterated law laid down by the Hon'ble Supreme in case of Virender Nath Gautam vs. Satpal Singh reported in 2007(3) SCC 617 wherein the Hon'ble Supreme Court has distinguished between facta probanda and facta probantia. it is also held that material facts on which party relied for his claim are called facta probanda and must be stated in the pleadings. While on the other hands, the facts by means of which facta probanda are proved and which are in the nature of facta probantia, need not be set out in the pleadings.
19. At this stage, this Court also seeks to rely upon decision of the Hon'ble Supreme Court in case of K. Karunanidhi vs. A. Santhakumar reported in 2023 SCC Online SC 573 wherein the Hon'ble Supreme Court has inter alia summed up the legal position insofar as Section 83(1)(a) of the RP Act, 1951, Section 100(1) (d)
(iv) of the RP Act and Order VII Rule 11 (a) of the Code of Civil Procedure. Paragraph no. 28 of the said decision being relevant for the present purpose is reproduced hereinbelow for benefit:
"28. The legal position enunciated in afore-stated cases may be summed up as under:-
i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his Page 28 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined right to the judgement of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad.
iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.
iv. In order to get an election declared as void under Section 100(1)
(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected.
v. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act.
19.1 Considering the law laid down by the Hon'ble Supreme Court clearly appear to be that under Section 83(1)(a) of the RP Act, 1951, the election petition should contain a concise statement of material fact which not stated could result in the election petition being dismissed on the ground alone as the case would be covered by order Order VII Rule 11 (a) of the CPC i.e on the ground of lack of cause of action. All material facts are required to be pleaded, omission of a single material fact would lead to incomplete cause of action and the statement of claim would become bad in law. The word "material facts" have been held to mean the entire bundle of facts which would constitute complete cause of action. Material facts would include Page 29 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined positive statement of fact as also positive averment of a negative fact. It is reiterated that omission of single material fact would lead to incomplete cause of action leading to summarily dismissal of election petition under Order VII Rule 11(a) of the Code of Civil Procedure read with Section 83 of the RP Act, 1951.
20. Having examined the legal conspectus, this Court would now analyze the election petition from the perspective of the provisions of RP Act, 1951 and under the provisions of Order VII Rule 11(a) Code of Civil Procedure, as explained by the Hon'ble Supreme Court in the decisions as referred to hereinabove. Before entering into the analysis it would be pertinent to mention that Section 84 of the RP Act, 1951 inter alia lays down the relief that may be claimed by the election petitioner. It is laid down by the said Section that a petitioner in addition to claim a declaration that the election of all or any of the returned candidate is void, can further claim that he himself or any other candidate has been duly elected. In the instant case, apart from seeking a relief to declare the election of the returned candidate i.e. original respondent no.1 as being void, there are other prayers which have been sought for, which would not be within the realm of an election petition. Prayers 7(C), (D), (E) and 7(F) of the petition are reproduced hereinbelow:
"7 (C) Your Lordships may be pleased to the software on all EVM machines must be checked in the presence of the petitioner or his authorized representatives.
7(D) Your Lordships may be pleased to appointment the Special Investigation Team (SIT) to check, validate and evaluate Page 30 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined how the EVM provided identical voting percentage in the favour of ruling party in last 4 Lok Sabha election (i.e. 2014, By-poll 2014, 2019 and 2024.
7(E) Your Lordships may be pleased to Analyses of the Lok Sabha election results of 2014, by-poll results of 2014, 2019 and 2024, noticed the percentage of votes received by the top-3 ( BJP, INC and NOTA) were 98.04%, 98.89 %, 97.79% and 97.57% but total voting percentages were 71%, 47%, 68%, and 62% respectively. Declaring ballot paper voting in select areas of the Vadodara Lok Sabha is necessary to validate historical results and voter love for the ruling party. To analyse and evaluate the percentage of votes obtained by the three most prominent parties (BJP. INC and NOTA) that receive 98% or higher. Let the ruling party determine the areas for ballot paper voting.
7(F) Your Lordships may be pleased to order to-election in the Vadodara 20 Lok Sabha constituency with an approval to check the software installed in all EVM by the presence of all candidates or his authorized representatives."
21. Now considering the averments in the petition from the perspective of Section 83 (1)(a) of the RP Act, 1951 which requires a concise statement of the material facts on which the petitioner relies. Again before delving into the said aspect it would be apposite to refer to the observations of the Hon'ble Supreme Court in case of Azhar Hussain vs. Rajiv Gandhi (supra) wherein the Hon'ble Supreme Court has inter alia referred to material facts being facts which if established would give the petitioner the relief asked for. It is further elaborated by observing that the test which is required to be answered Page 31 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined is whether the Court would have given a verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition.
21.1. A perusal of the memo of the petition reveals that the petition at paragraph no. 1 and 2 contains certain basic facts and then moves to paragraph no. 3 under the heading grounds for challenge. The grounds as it appears, are made relatable to the aspects as found in Section 100(1)(d)(i) to (iv) of the RP Act, 1951.
21.2. In ground 3.1 which is with regard to improper acceptance of nomination, it is mentioned that the nomination of the respondent was improperly accepted despite his disqualification under Section 125(A) of the RP Act, 1951. The petitioner also raises certain concerns about the affidavit and nomination form filed by respondent no.1. It is mentioned that while the original respondent no. 1 mentions his occupation as a Social Worker and his source of income includes, bank interest, dividend interest, capital gain etc., at the same time the petitioner seeks to question the income of the Respondent No.1 but to this Court it would appear the pleadings are vague, the said paragraph being reproduced for benefit:
3. In the affidavit respondent no.1 highlighted details of his profession or occupation as a social worker. His Source of income includes bank interest, dividends, capital gain etc.The total income of Respondent no.1 for the financial year 2022-23 was Rs. 8,65,550 ( Rupees Eight Lakh Sixty Five Thousand Five Hundred Fifty) while the total movable asset value equals to investment, it will come to Rs. 348877, not Rs. 865550. There is no information available about the income of Rs. 516673 for the financial year 2022-23."Page 32 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024
NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined 21.3 The petitioner goes on to state that the original respondent no. 1 has qualification of Bachelor Degree in Physiotherapy from MS University, Baroda and second degree in Master of Human Resources Management from the same university. It is alleged that the prefix 'Doctor' is added in the nomination application form but there is no reference about the same in the affidavit." It is stated that while the name approved by the ECI had the prefix , and the banner posted by ruling party also stated the name with the prefix, yet, it is mentioned that the Indian Medical Association has laid down on 23.06.2024 that Physiotherapist cannot use the prefix "Dr.". The later portion of the said paragraph is reproduced hereinbelow for benefit:
"In India has anyone submitted a nomination for any election? Who is responsible for verifying the candidate's basic information? The response from the returning officer at the time of scrutiny of the nomination forms that they need to check all fields are filled or not, the correctness of the information is not required to check. I am certain that the information is presented in a misleading manner to the voters of Vadodara Lak Sabha".
21.4 Considering the averments it would appear that at the first instance, the petitioner states about the respondent no. 1 being disqualified under Section 125(A) of the RP Act , 1951 which lays down a penalty for filing a false affidavit. It does not appear anywhere that any penalty has been imposed upon respondent no. 1 under Section 125(A). The later averment as regards return on investment etc., clearly appears to be some kind of assumption of the petitioner, and whereas to this Court, it appears that the allegation itself is unfathomable, since while the petitioner talks about return on investment, there is no mention Page 33 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined what is the investment that has been mentioned by the petitioner. Thus the averments are as vague as they can be.
21.5. Insofar as the second part is concerned, it appears that while the petitioner is trying to raise a grievance as regards the original respondent no. 1 using the word "Doctor" as prefix, there does not appear to be any legal basis for the petitioner to have raised the grievance since the only averment in support of such a grievance is some instruction by the Indian Medical Association that Physiotherapist cannot use the prefix "Doctor". Pertinently, the instructions are dated 3.06.2024 that is after the date of election which was held on 07.05.2024. Again the legal sanctity of an organization which appears to be an association to issue legally enforceable guidelines, is also not stated. Thus, it would appear on this aspect also that the averments are completely vague, not containing any statement of material facts as required. Furthermore, when such a serious allegation i.e. of filing of false affidavit is being made in an election petition, material particular, should to this Court include appropriate details of the legal bar against a person having the qualification like the returned candidate using the prefix "Doctor". In absence of any legal mandate, which is part of the pleadings bold averments as regards the original respondent no.1 having used the prefix ' Doctor' wrongly, would not be an averment which would fall under the category of material statement of facts.
21.6 Again a closure perusal of the paragraph also reveals ambiguous averment inasmuch the petitioner does not state very clearly that original respondent no. 1 has wrongly added the prefix "Doctor"
Page 34 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined
or has filed a misleading affidavit etc. What is stated is that in the nomination form prefix "Doctor" is used while no reference with regard to the same in the affidavit. The ultimate averment in the paragraph highlighted above, also is an indicator that the averments cannot be relatable to the term material statement of facts at all.
22. The second ground i.e ground 3.2 is with regard to non compliance of Rules. In this regard it is averred in the petition that the petitioner on 19.04.2024 had a discussion with the representative appointed by the Election Commission of India at around 11.15 AM about total number of individuals including candidate allowed at the time of filling up of nomination forms to contest the elections and whereas the Election Commission of India representative had stated that only five people including the candidate should be present. It is stated that original respondent no. 1 had resubmitted nominations on 19.04.2024 at 2.00 p.m. with less than five individuals and the allegation being that the information about maximum five persons along with the candidate being disclosed to the candidate of the ruling political party. It is averred "is it possible to get the detailed mobile bill of each member present in the Collector's office on 19.04.2024 to prove that team working for the Election Commission of India is not following the Election Commission of India guidelines". It is also stated that the petitioner had communicated his concern vide an E-mail dated 20.04.2024 but has not received any response.
22.1 It is further averred that on 20.04.2024 an e-mail was sent (by the petitioner) titled 'changes are required in the election process to ensure an equal playing field for all candidates' and whereas it is alleged Page 35 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined that the petitioner has not received any acknowledgment or response with regard to the same.
22.2 It is further averred that the returning officer had held a meeting to address concerns of all candidates on 24.04.2024 where the petitioner had raised questions about installing software on EVM systems and whereas the ECI team had rejected the demand of the petitioner without giving any satisfactory answer and though the petitioner had written an e-mail to the Election Commission of India with the subject "to change the ECI staff of 20- Vadodara constituency and guarantee that all candidates receive equal treatment from the ECI team", highlighting alleged discrimination with independent candidate and highlighting the alleged action of the Returning Officer not inviting all candidates at the time of installation of software in EVM to which the petitioner has not received any response.
22.3 Having perused the averments in the said paragraph, to this Court it would clearly appear that none of the averments would qualify as material statement of facts. As noted hereinabove an election petition can contain two different prayers namely declaring that election of the returned candidate as void and a further declaration that the petitioner himself or any other candidate has been duly elected. The RP Act, 1951 does not contemplate any other prayers i.e prayers in the nature as prayed for in prayer 7 ( C ) to prayer 7 (F). Thus it would clearly appear that the averments in the above discussed paragraph could not be in any manner whatsoever relatable to the Page 36 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined prayer for seeking to declare the election of returned candidate i.e. the original respondent no. 1 as void. The fact of the returned candidate coming to fill his nomination with less than five individuals on the same day when the ECI representative, had clarified the same and a request for calling for the mobile details of each number of the Collector's office for finding out as to who was not working as per the ECI guidelines, could by no stretch of imagination be treated as a ground on which the election of the original respondent no. 1 could be declared as void. As regards the petitioner not getting response to the e-mails he had sent to the Election Commission of India, also could in no manner be treated as a ground for declaring the election of the original respondent no. 1 as being void.
22.4 Further as noted hereinabove, while the petitioner has tried to co-relate the grounds raised by him, as per the grounds mentioned in Section 100(1) (d) (i) to (iv) of the RP Act, 1951, and whereas while the heading of the ground is non compliance of Rules yet, there is no Rule or for that matter any section or order quoted therein and violation of which is claimed, more particularly the aspect of such violation materially affecting the elections not being mentioned at all.
22.5. Ground 3.3 is with regard to the violation of model code of conduct and the averment is with regard to voters being permitted to vote using photograph of Aadhar Card on mobile phone and whereas it is alleged by the petitioner that he could stop a particular voter from voting since the voter did not have a hardcopy of Identity card yet, on 07.05.2024 the petitioner had complained to the returning officer and Page 37 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined the ECI Team as regards violation of model code of conduct but the petitioner has not received any acknowledgment thereof.
23. To this Court as observed hereinabove, the said ground cannot be relatable to the prayer that the election of the returned candidate i.e original respondent no. 1 herein should be declared as void and hence there is no material statement of facts found in the said paragraph.
23.1. Insofar as paragraph no. 3.4 the same is under the title 'illegal practices' and whereas it is mentioned in the said paragraph that 'the respondents indulged in corrupt practices as defined under Section 123 of the RP Act, 1951.' The allegation being that total voting percentage in favour of the top three candidates namely candidates of the BJP, INC and in favour of NOTA were almost the same in elections held in the year 2014, by-polls of the year 2014, 2019 and 2024 but the vote share received by the candidate of the ruling party was almost the same. It is also alleged that while number of candidates increased or decreased but the total vote percentage received by the above three were almost the same and whereas the petitioner had raised a grievance to the ECI but no response has been received till date.
23.2 It is further alleged that there is no change in ranking of candidates during counting i.e. according to the petitioner votes polled for NOTA ranked 3rd, while votes polled by the BSP candidate Page 38 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined was 4th from beginning to end. An allegation with regard to battery percentage in the EVMs is also raised and whereas it is further stated that the petitioner had submitted an e-mail to the ECI, as regards the same. With regard to the above, it requires mention that Section 123 of the RP Act, 1951 inter alia lays down certain acts that is deemed to be corrupt practice namely (1) bribery;
(2) undue influence both direct and indirect;
(3) appeal by candidate or his agent or by any other person with consent of a candidate or his election agent to vote or refrain from voting on the ground of religion, race, caste, community or language etc. 3(A) Promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on ground of religion, race, caste, community or language.
3(B) propagation of practice or commission of sati
4. publication by a candidate or his agent or by any other person of any statement of fact which is false,
5. Hiring or procuring, on payment or otherwise, vehicle for conveyance of any elector to or from any police station.
6. Incurring of unauthorized expenditure.
7. Procuring or to attempt to procure assistance of Government Servants or persons mentioned in the said sub-section and (8) Booth capturing.
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23.3. The corrupt practices mentioned in Section 123 of the RP Act 1951, is elaborately reproduced hereinabove to highlight that the averments in the above paragraph except for using the word corrupt practices, does not mention any of the acts as relatable to Section 123 of the RP Act having been committed by the returned candidate i.e the original respondent no.1 or his election agent or by any other person with the consent of the candidate or his election agent.
23.4 Again what is mentioned is the voting percentage and voting share as well as ranking of candidates not changing during the entire counting and with regard to the battery percentage of EVMs. As observed by this Court hereinabove, neither the averments could be co-related with any corrupt practice as envisaged under Section 123 of the Act 1951 nor could any of the averments be relatable to the prayer that the election of the returned candidate be set aside. As such, the entire averments in the said paragraph, does not contain a single allegation of wrong doing by the returned candidate. Thus it would clearly appear that the averments are not in tune with the requirements of Section 83 (1)(a) of there being material statement of facts to be mentioned in the election petition.
24. Paragraph No. 3.5 states about violation of Constitutional rights and whereas it is alleged that the petitioner had been discriminated by the ECI even though the ECI was required to consider all candidates equally. It is averred that Article 21 of the Constitution of India inter alia safeguards the Right to Life and Personal Liberty emphasizing dignity and fairness in legal procedure Page 40 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined has been violated by the ECI. It is alleged that representative of National Political Parties were given extra attention while other candidates particularly independent candidates without political affiliation or background were treated badly. It is alleged that there is no system whereby an independent candidate gets information including information required to file an election nomination etc. 24.1 In this regard, this Court seeks to rely upon the observations of the Hon'ble Supreme Court in case of Karim Uddin Barbhuiya vs. Aminul Haque Laksar reported in 2024 SCC Online SC 504 wherein the Hon'ble Supreme Court has held that right to contest election or to question election by means of an election petition is neither common law right nor fundamental right and whereas it is a statutory right governed by statutory provisions of the RP Act, 1951. It is also clarified that outside the statutory provisions, there is no right to dispute an election. Keeping the above observation in mind it would appear that averments of the that Right to fight election is a constitutional right and whereas Article 21 inter alia safeguards the Right to fairness in legal procedure, insofar as Elections are concerned, may not be correct legal portion.
24.2 Be that as it may, it would appear as noted above, that the averments in the said paragraph cannot be corelated in any manner whatsoever with regard to the prayer for declaring the election of the returned candidate as void i.e. they are not material facts. While the petitioner has raised allegations against the ECI, yet, the present election petition would not be the right forum to agitate or to Page 41 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined adjudicate the same more particularly in absence of even a passing averment that the returned candidate was in some manner responsible for the alleged plight of the petitioner. In the considered opinion of this Court averments in the said paragraph not being relatable to the to the prayer for declaring the election of the returned candidate as void, the averments in the said paragraph could not be treated as material statement of facts.
24.3 Considering the above discussion, it would clearly appear that the petition does not contain a concise statement of material facts i.e. the entire bundle of facts which would constitute a complete cause of action. Perusal of the discussion as regards the averments made in the petition would also lead to an inevitable conclusion that the petition does not disclose any cause of action at all.
25. Insofar as the submission of the party-in-person relying upon decision of the Hon'ble Supreme Court in case of Ashraf Kokkur (supra), it would appear that the Hon'ble Supreme Court was inter alia held that while considering an application under Order VII Rule 11A, the inquiry which the Court is required to conduct is the facts pleaded disclosed any cause of action as against a complete cause of action. While it had been attempted to be submitted by the party-in-person that the election petition contains a cause of action, from the elaborate discussion hereinabove, it would clearly appear that the Election Petition does not reveal any cause of action much at all much less a complete cause of action. Thus the judgement of the Page 42 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined Hon'ble Supreme Court, would not advance the cause of the petitioner party-in-person any further.
25.1 Furthermore the party-in-person had also relied upon decision of Hon'ble Supreme Court in case of K.K. Ramchandran Master vs. M.V.Sreyamskumar & Ors. reported in 2010 (7) SCC 428 and whereas the Hon'ble Supreme Court has inter alia observed that while a petition that does not disclose material facts can be dismissed as one that does not disclose a cause of action, dismissal on the ground of deficiency or non disclosure of particulars of corrupt practice may be justified only if the election petitioner does not, despite an opportunity given by the Court provides the particular and thereby cure the defects. In this regard it requires to be noted that at ground no. 3.4 of the election petition, the party-in-person has mentioned about the alleged corrupt practices indulged by 'the respondents.' As elaborately discussed hereinabove, while the corrupt practices, are not relatable to the respondent no.1, it also would appear that the corrupt practices alleged are not the corrupt practices as defined under Section 123 of the RP Act. It would thus appear to this Court that while an opportunity ought to have been given to the petitioner of an election petition to cure deficiency in providing the material particular with regard to corrupt practice, yet in the instant case, since none of the corrupt practices alleged are as corelatable with the corrupt practices explained in Section 123, therefore, the requirement of providing an opportunity ought not to be exercised in the instant case.
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where the Hon'ble Supreme Court has distinguished between facta probanda and facta probantia, while it is attempted to be argued that the petitioner is only required to plead facta probanda (material facts) and not the facta probantia i.e the facts on basis of which the material facts are proved, whereas to this Court it would appear as mentioned elaborately hereinabove that since the petition is completely bereft of facta probanda -material facts, the law laid down by the Hon'ble Supreme Court would not in any way advance the cause of the present petitioner. Hence, the decisions relied upon by the party-in- person, would not in any way come to the aid of the party-in-person.
26. At this stage this Court seeks to rely upon observation of the Hon'ble Supreme Court in case of Mayar (H.K.) Ltd. vs. Owners and Parties Vessel MV. Fortune Express, reported in 2006(3) SCC 100 which has been quoted in the decision of the Hon'ble Supreme Court in case of Ashraf Kokkur (supra), which has been reproduced hereinabove. The Hon'ble Supreme Court has stated that the Court has to read the entire plaint to fine out whether the same discloses a cause of action. The Hon'ble Supreme Court has further observed that the aspect of whether the plaint discloses a cause of action is a question of fact which has to be gathered on basis of averments made in the plaint in its entirety taking those averments to be correct. The Hon'ble Supreme Court has further explained that a cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose the material facts are required to be stated. Considered from the above perspective, while the petitioner is entitled Page 44 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined to seek the relief of declaring the election of returned candidate i.e original respondent no. 1 as void, none of the averments made in the petition read as a whole, would constitute the material fact which even if taken to be correct, would render the prayer of declaration as noted hereinabove being granted.
26.1 At this stage it would be relevant to mention that in case of Azhar Hussain (supra) the Hon'ble Supreme Court has inter alia laid down that the test for ascertaining whether facts are 'material facts' would be whether the Election Petition would be allowed in case the respondent did not appear. To this Court it would appear, applying the test to the facts of the present case that even if the respondent had not appeared, the petition based on the pleading/averments made would not be allowed, since none of the facts pleaded are such that even if the same is taken as the truth, would result in the election being materially affected, furthermore, in case of K.K. Ramchandran Master (supra) and K. Karunanidhi (supra) the Hon'ble Supreme Court has held that a petition that does not disclose material facts, would be liable to be dismissed as not raising any cause of action.
26.2 At this stage, it would be apposite to refer to the decision in case of Karim Uddin Barbhuiya vs. Aminul Haque Laskar and others (supra), by the Hon'ble Supreme Court. Observations at paragraphs no. 13, 14, 15, 19 to 24, being relevant for the present purpose are reproduced hereinbelow for benefit:
"13. It hardly needs to be reiterated that in an Election Petition, pleadings have to be precise, specific and unambiguous, and if the Election Petition does not disclose a cause of action, it is liable to be Page 45 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined dismissed in limine. It may also be noted that the cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the RP Act. As held in Bhagwati Prasad Dixit 'Ghorewala' vs. Rajeev Gandhi and in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, if the allegations contained in the petition do not set out the grounds as contemplated by Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the pleadings are liable to be struck off and the Election Petition is liable to be rejected under Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan Nayak vs. Ramratan Chaturvedi and Others be also made, wherein this Court upon review of the earlier decisions, laid down following principles applicable to election cases involving corrupt practices: -
"5. This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being:
(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] and Kona Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] .
(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh [(1973) 2 SCC 599: (1974) 1 SCR 52] , Kona Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] .
(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya v.
Lachhi Ram [(1955) 1 SCR 608: AIR 1954 SC 686] and Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660] .
(4) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh [(1984) 4 SCC 649] .
(5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances Page 46 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660] , M. Narayana Rao v. G. Venkata Reddy [(1977) 1 SCC 771: (1977) 1 SCR 490] , Lakshmi Raman Acharya v. Chandan Singh [(1977) 1 SCC 423: (1977) 2 SCR 412] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260] . (6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660] , Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12: AIR 1964 SC 1366] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260]."
15. The legal position with regard to the non-compliance of the requirement of Section 83(1)(a) of the RP Act and the rejection of Election Petition under Order VII Rule 11, CPC has also been regurgitated recently by this Court in case of Kanimozhi Karunanidhi vs. A. Santhana Kumar and Others (supra). Paragraph no. 28 is reproduced hereinbelow for benefit:
"28. The legal position enunciated in afore-stated cases may be summed up as under: -- i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgment of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad.
iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.
iv. In order to get an election declared as void under Section 100(1) Page 47 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined
(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected.
v. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act."
19. Now, from the bare reading of the Election petition, it emerges that the respondent no. 1 has made only bald and vague allegations in the Election Petition without stating the material facts in support thereof as required to be stated under Section 83(1)(a) of the RP Act. Apart from the fact that none of the allegations with regard to the false statements, and suppression and misrepresentation of facts allegedly made by the respondent no. 1 with regard to his educational qualification or with regard to his liability in respect of the loan availed by him for his partnership firm or with regard to his default in depositing the employer's contribution to provident fund, would fall within the definition of "Corrupt practice" of "undue influence" as envisaged in Section 123(2) of the RP Act, the Election petition also lacks concise statement of "material facts" as contemplated in Section 83(a), and lacks "full particulars" of the alleged Corrupt practice as contemplated in Section 83(b) of the RP Act.
20. So far as the allegations of "Corrupt practice" are concerned, the respondent no. 1 was required to make concise statement of material facts as to how the appellant had indulged into "Corrupt practice" of undue influence by directly or indirectly interfering or attempted to interfere with the free exercise of any electoral right. Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of making a concise Page 48 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined statement of the "material facts" in the Election Petition. The material facts which are primary and basic facts have to be pleaded in support of the case set up by the Election petitioner to show his cause of action. Any omission of a single material fact would lead to an incomplete cause of action entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) of CPC read with Section 83(1)(a) of the RP Act. The said legal position has been well settled by this Court in Azhar Hussain vs. Rajiv Gandhi, wherein this Court after referring to the earlier pronouncements in Samant N. Balkrishna and Another vs. George Fernandez and Others and Shri Udhav Singh vs. Madhav Rao Scindia, observed that the omission of a single material fact would lead to incomplete cause of action, and that an Election petition without the material facts is not an Election petition at all. It was further held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an Election petition can be and must be dismissed, if it suffers from any such vice.
21. It is also pertinent to note at this juncture that a charge of "Corrupt practice" is easy to level but difficult to prove because it is in the nature of criminal charge and has got to be proved beyond doubt. The standard of proof required for establishing a charge of "Corrupt (1986) Supp. SCC 315 (1969) 3 SCC 238 (1977) 1 SCC 511 practice" is the same as is applicable to a criminal charge. Therefore, Section 83(1)(b) mandates that when the allegation of "Corrupt practice" is made, the Election Petition shall set forth full particulars of the corrupt practice that the Election Petitioner alleges, including as full a statement as possible of the names of parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The pleadings with regard to the allegation of corrupt practice have to be precise, specific and unambiguous whether it is bribery or undue influence or other corrupt practices as stated in Section 123 of the Act. If it is corrupt practice in the nature of undue influence, the pleadings must state the full particulars with regard to the direct or indirect interference or attempt to interfere by the candidate, with the free exercise of any electoral right as stated in Section 123(2) of the Act. We are afraid, Mr. Gupta has failed to point out from the pleadings of the Election petition as to how the appellant had interfered or attempted to interfere with the free exercise of any electoral right so as to constitute "undue influence" under Section 123(2) of the Act.
22. So far as the ground contained in clause (d) of Section 100(1) of Page 49 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined the Act, with regard to improper acceptance of the nomination of the Appellant is concerned, there is not a single averment made in the Election Petition as to how the result of the election, in so far as the appellant was concerned, was materially affected by improper acceptance of his nomination, so as to constitute a cause of action under Section 100(1)(d)(i) of the Act. Though it is true that the Election Petitioner is not required to state as to how corrupt practice had materially affected the result of the election, nonetheless it is mandatory to state when the clause (d)(i) of Section 100(1) is invoked as to how the result of election was materially affected by improper acceptance of the nomination form of the Appellant.
23. As transpiring from the Election Petition, the respondent no. 1 himself had not raised any objection in writing against the nomination filed by the Appellant, at the time of scrutiny made by the Returning Officer under Section 36 of the Act. According to him, he had raised oral objection with regard to the education qualification stated by the Appellant in the Affidavit in Form-26. If he could make oral objection, he could as well, have made objection in writing against the acceptance of nomination of the Appellant, and in that case the Returning Officer would have decided his objection under sub-section (2) of Section 36, after holding a summary inquiry. Even if it is accepted that he had raised an oral objection with regard to the educational qualification of the Appellant before the Returning Officer at the time of scrutiny, the respondent no. 1 has failed to make averment in the Election Petition as to how Appellant's nomination was liable to be rejected by the Returning Officer on the grounds mentioned in Section 36(2) of the Act, so as to make his case fall under clause (d)(i) of Section 100(1) that there was improper acceptance of the nomination of the Appellant. The non-mentioning of the particulars as to how such improper acceptance of nomination had materially affected the result of the election, is apparent on the face of the Election Petition.
24. As stated earlier, in Election Petition, the pleadings have to be precise, specific and unambiguous. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC. An omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition under Order VII Rule 11 read with Section 83 and 87 of the RP Act."
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26.3 The Hon'ble Supreme Court in the above quoted portion has inter alia held that pleadings in an election petition, have to be precise, specific and unambiguous. That if an election petition does not disclose a cause of action it is liable to be dismissed in limine. That the cause of action in an election petition must relate to the grounds specified in Section 100 of the RP Act and if the allegations do not set out the grounds as contemplated under Section 100 and also do not confirm to requirement of Sections 81 and 83 then the election petition is liable to be rejected under Order 7 Rule 11 of CPC. The Hon'ble Supreme Court has further observed that insofar as allegation of corrupt practice are concerned, the election petition should contain concise statement of material facts as to how the returned candidate had indulged in corrupt practice. All material facts which are primary and basic facts have to be pleaded in support of the case of the election petitioner to make a cause of action and omission of a single material fact would lead to an incomplete cause of action entitling the returned candidate to pray for dismissal of election petition under Order VII Rule 11(a) of the Code of Civil Procedure read with Section 83(1) (a) of the RP Act. It is also observed that Section 83(i) (d) mandates that when an allegation of corrupt practice is made election petition shall contain full particulars of the corrupt practice as well as statement of parties alleged to have indulged in corrupt practice and the date and place of commission of such practice. Pertinently it is specifically laid down that pleadings with regard to allegation of corrupt practice have to be precise, specific and unambiguous as to the nature of corrupt practice as Page 51 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024 NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined stated in Section 123 of the Act. It is further observed that while it may not be required by the election petitioner to state as to how corrupt practice had materially effected the result of the election, nonetheless upon invoking of Section 100 (1)(d) (i), it is mandatory to state how election was materially effected.
26.4 Now considering the pleadings of the present case, as elaborately discussed hereinabove, it would clearly appear that the Election Petition suffers from the following flaws:
(a) The Election Petition not setting out grounds as contemplated under Section 100 of the RP Act. While the heading of each of the ground at paragraph no. 3 would correspond with the grounds under Section 100, yet the body of the grounds can not in any manner be correlated either to the heading of the said sub-ground or with the grounds as set out in Section 100 of the R.P. Act.
(b) The Election Petition not confirming to the requirement of Section 83, more particularly Section 83(1)(a) and (b), i.e not containing concise statement of material facts and not containing full particulars of the corrupt practices alleged.
(c) The Election Petition does not set out any material facts whatsoever.
(d) The allegation of corrupt practice not co-relatable to the explanation of corrupt practice as laid down in Section 123 of the R.P. Act.Page 52 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024
NEUTRAL CITATION C/EP/3/2024 JUDGMENT DATED: 12/12/2024 undefined
(e) The petition stating vague grounds .
(f) Most importantly the petition not disclosing any cause of action.
27. Having regard to the aforesaid discussion, observations and conclusions, more particularly the conclusion in the previous paragraph, it would appear that the Election petition does not set out material facts for establishing a cause of action, the Election Petition does not set out grounds as contemplated under Section 100 of the R.P. Act and thus as per the law laid down by the Hon'ble Supreme Court in the judgements referred to hereinabove, more particularly the judgement in case of Karim Uddin Barbhuiya (supra) the Election petition is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, read with Section 83 of the R.P. Act. Consequently the application preferred by the respondent no. 1 returned candidate is allowed, the Election Petition is rejected in limine. Connected application stand disposed of in view of the above order.
(NIKHIL S. KARIEL,J) NIRU Page 53 of 53 Uploaded by NIRU AMIN(HC00211) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:55 IST 2024