Gauhati High Court
Karim Uddin Barbhuiya vs Aminul Haque Laskar And 12 Ors on 26 April, 2023
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/52
GAHC010131332021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1278/2021
KARIM UDDIN BARBHUIYA
S/O LATE RAHIM UDDIN BARBHUIYA, R/O DHONEHARI PART-II, P.O.-
SILDUBI, P.S.-SONAI, DIST-CACHAR, PIN-788112
VERSUS
AMINUL HAQUE LASKAR AND 12 ORS
S/O LATE ALA UDDIN LASKAR, R/O BERENGA PART-II, P.O.-BERENGA, P.S.-
SILCHAR, DIST-CACHAR, PIN- 788006, ASSAM
2:M. SANTI KUMAR SINGHA
S/O KALEN SINGHA
R/O DHANEHARI PART-III
LAMARGRAM KHUNON
P.O.-KAZIDAHAR
P.S.-SONAI
DIST-CACHAR
ASSAM
PIN-788115
3:ANJAN KUMAR CHANDA
S/O LATE PULIN BIHARI CHANDA
R/O VILL-KABIURA UTTER KRISHNAPUR PART-I
P.O.-MEHERPUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788015
4:ANWAR HUSSAIN LASKAR
S/O LATE TAIMUS ALI LASKAR
R/O VILL-UTTAR KRISHNAPUR PART-II
Page No.# 2/52
P.O.-UTTAR KRISHNAPUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788001
5:ABDUL MATLIB LASKAR
S/O LATE REJAK ALI LASKAR
R/O UTTAR KRISHNAPUR
P.O. AND P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788006
6:ASHISH HALDAR
S/O ASHUTOSH HALDAR
R/O VILL-DORGAKONA
P.O.-ASSAM UNIVERSITY
SILCHAR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788011
7:ANAMUL HAQUE
S/O LATE MUDASSIR AHMED LASKAR
R/O VILL-DHONEBARI PART-II
P.O.-SILDUBI
P.S.-SONAI
DIST-CACHAR
ASSAM
PIN-788001
8:KARIM UDDIN BARBHUIYA
S/O LATE FOZIZUR RAHMAN BARBHUIYA
R/O VILL AND P.O.-JHANJARBALI
P.S.-SONIA
DIST-CACHAR
ASSAM
PIN-788119
9:DILIP KUMAR DAS
S/O SRI DARSHAN DAS
R/O VILL-BABUTILLA BHORAKHAI GRANT
P.O.-NIT
P.S.-SILCHAR
DIST-CACHAR
ASSAM
Page No.# 3/52
PIN-788010
10:MD NAZRUL ISLAM LASKAR
S/O LATE SANUHAR ALI LASKAR
R/O VILL-GANGANAGAR PART-I
P.O.-SAINT KATHERINE
P.S.-KACHUDARAM
DIST-CACHAR
ASSAM
PIN-788099
11:BIJAN PAUL
S/O LATE BADOL PAUL
R/O GHUNGHUR
NEAR SILCHAR MEDICAL COLLEGE
P.O.-GHUNGHUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788114
12:SHUKUMAR SONAR
S/O SHRI RAM BIKASH SONAR
R/O VILL-FAKIRTILLA
BHORAKHAI GRANT
P.O.-NIT
SILCHAR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788010
13:SAYAL AHMED BARBHUIYA
S/O LATE SAJIR UDDIN BARBHUIYA
R/O VILL- UTTAR KRISHNAPUR PART-II
P.O.-UTTAR KRISHNAPUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-78800
Advocate for the Petitioner : MR K P PATHAK
Advocate for the Respondent : MR D MAZUMDER
Page No.# 4/52
Linked Case : El.Pet./1/2021
AMINUL HAQUE LASKAR
S/O LATE ALA UDDIN LASKAR
R/O BERENGA PART-II
P.O.-BERENGA
P.S.-SILCHAR
DIST-CACHAR
ASSAM
VERSUS
KARIM UDDIN BARBHUIYA AND 12 ORS.
S/O LATE RAHIM UDDIN BARBHUIYA
R/O DHONEHARI PART-II
P.O.-SILDUBI
P.S.-SONAI
DIST-CACHAR
PIN-788112
2:M. SANTI KUMAR SINGHA
S/O KALEN SINGHA
R/O DHANEHARI PART-III
LAMARGRAM KHUNON
P.O.-KAZIDAHAR
P.S.-SONAI
DIST-CACHAR
ASSAM
PIN-788115
3:ANJAN KUMAR CHANDA
S/O LATE PULIN BIHARI CHANDA
R/O VILL-KABIURA UTTER KRISHNAPUR PART-I
P.O.-MEHERPUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788015
4:ANWAR HUSSAIN LASKAR
S/O LATE TAIMUS ALI LASKAR
R/O VILL-UTTAR KRISHNAPUR PART-II
P.O.-UTTAR KRISHNAPUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788001
Page No.# 5/52
5:ABDUL MATLIB LASKAR
S/O LATE REJAK ALI LASKAR
R/O UTTAR KRISHNAPUR
P.O. AND P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788006
6:ASHISH HALDAR
S/O ASHUTOSH HALDAR
R/O VILL-DORGAKONA
P.O.-ASSAM UNIVERSITY
SILCHAR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788011
7:ANAMUL HAQUE
S/O LATE MUDASSIR AHMED LASKAR
R/O VILL-DHONEBARI PART-II
P.O.-SILDUBI
P.S.-SONAI
DIST-CACHAR
ASSAM
PIN-788001
8:KARIM UDDIN BARBHUIYA
S/O LATE FOZIZUR RAHMAN BARBHUIYA
R/O VILL AND P.O.-JHANJARBALI
P.S.-SONIA
DIST-CACHAR
ASSAM
PIN-788119
9:DILIP KUMAR DAS
S/O SRI DARSHAN DAS
R/O VILL-BABUTILLA BHORAKHAI GRANT
P.O.-NIT
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788010
10:MD NAZRUL ISLAM LASKAR
S/O LATE SANUHAR ALI LASKAR
R/O VILL-GANGANAGAR PART-I
P.O.-SAINT KATHERINE
P.S.-KACHUDARAM
DIST-CACHAR
ASSAM
PIN-788099
11:BIJAN PAUL
Page No.# 6/52
S/O LATE BADOL PAUL
R/O GHUNGHUR
NEAR SILCHAR MEDICAL COLLEGE
P.O.-GHUNGHUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788114
12:SHUKUMAR SONAR
S/O SHRI RAM BIKASH SONAR
R/O VILL-FAKIRTILLA
BHORAKHAI GRANT
P.O.-NIT
SILCHAR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788010
13:SAYAL AHMED BARBHUIYA
S/O LATE SAJIR UDDIN BARBHUIYA
R/O VILL- UTTAR KRISHNAPUR PART-II
P.O.-UTTAR KRISHNAPUR
P.S.-SILCHAR
DIST-CACHAR
ASSAM
PIN-788006
------------
Advocate for : MR D MAZUMDER Advocate for : MR S BORTHAKUR appearing for KARIM UDDIN BARBHUIYA AND 12 ORS.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the applicant : Mr. K.P. Pathak, Senior Advocate.
: Mr. H.I. Choudhury,
Mr. S. Borthakur,
Mr. B. Choudhury,
Mr. A. Baruah, Advocates.
For the Opposite Party No.1 : Mr. D. Mazumder, Senior Advocate.
: Mr. A.R. Bhuyan,
Mr. M.A.I. Hussain, Advocates.
For the Opposite Party No.13 : Mr. G.J. Saikia, Advocate.
For the Opposite Party Nos.2 to 12 : None appears.
Dates of hearing : 05.10.2021, 30.11.2021, 02.12.2021,
Page No.# 7/52
15.02.2022, 15.03.2022, 25.03.2022,
05.04.2022, 01.09.2022, 03.11.2022.
Date of judgment : 26.04.2023
JUDGMENT AND ORDER
(CAV)
Heard Mr. K.P. Pathak, learned senior counsel, assisted by Mr. A. Baruah, learned counsel for the applicant and also heard Mr. D. Mozumdar, learned senior counsel, assisted by Mr. A.R. Bhuyan, learned counsel for the opposite party no.1. Mr. G.J. Saikia, learned counsel for the proforma opposite party no. 13 is present. None appears on call for the proforma respondent nos. 2 to 12.
2. The applicant is the returned candidate, i.e. the elected Member from the No. 10, Sonai Legislative Assembly Constituency. By filing the connected election petition, his election has been challenged by the opposite party no. 1 by filing the connected election petition. In connection with the said election petition, the proforma opposite party no. 13 has filed a recrimination petition, registered as Recrimination Petition No. 1/2021. For the sake of clarity and to avoid any confusion, in this order the parties are referred to as per their respective status in the cause title of the election petition i.e. El.Pet. 1/2021.
3. By filing this interlocutory application under the provision of Order VII, Rule 11 of the Civil Procedure Code (CPC for short), read with section 86 of the Representation of the People Act, 1951 (RP Act for short), the returned candidate, i.e. the respondent no. 1 in the connected election petition has prayed for rejection of the election petition.
Submissions by the learned senior counsel for the respondent no. 1 (i.e. applicant):
Page No.# 8/52
4. By extensively referring to the statements made in the election petition, the learned senior counsel for the respondent no. 1 has submitted that the election of the respondent no. 1 has been challenged on the following four allegations, viz., (i) falsity of educational qualification of B.A. as disclosed in the 2021 election affidavit; (ii) suppression of educational qualification of Diploma in Engineering as disclosed in 2016 election affidavit; (iii) suppression of bank details; (iv) suppression of un-liquidated provident fund dues. Accordingly, it is submitted that the election petitioner claims that this was a case of (a) improper acceptance of nomination, which is covered under the provisions of section 100(1)(d)(i) of the RP Act; and (b) corrupt practice of undue influence, which is covered under Section 123(2) of the RP Act.
5. It was submitted that the allegations is to the effect that in the affidavit filed in respect of the election held in the year 2021, a false disclosure made by stating that the educational qualification of the respondent no. 1 was having B.A. Degree (i.e. Degree in Bachelor of Arts), which was in contradiction to the claim made by the respondent no. 1 in his affidavit filed in respect of the election held in the year 2016 that he was having educational qualification of Diploma in Engineering.
6. It was also submitted that in the affidavit filed in connection with the elections held in the year 2021, the respondent no. 1 had suppressed bank account details and his outstanding bank liability and moreover, the respondent no. 1 had not disclosed the statutory dues payable to the provident fund authority by M/s. Allied Concern, his partnership firm.
7. It was submitted that the statements made in the election Page No.# 9/52 petition can be compartmentalized under 9 (nine) parts, viz., (1) recitals (paragraphs 1 to 8); (2) general statements on law (paragraphs 25, 30, 32 and
33); (3) limitation (para 35); (4) security deposit (para 37); (5) bona fide (para
38); (6) submissions (paragraphs 26 and 28 to 34); (7) falsity of educational qualification [paragraphs 9, 9(A), 9(B), 10 to 14, 16, 20, 21, 22 and 26]; (8) suppression of bank account details with details of bank liability [paragraphs 9, 9(C), 17, 26 and 28]; (9) suppression of statutory dues on account of provident fund [paragraphs 9(D), 15, 16 and 26]. In the said context, it was submitted that in the election petition, there is no pleadings on material facts and lack of particulars on the allegations of "corrupt practice of undue influence." In this regard, it was submitted that as per the provision of Section 87(1) of the RP Act, it was provided that subject to the provisions of the said RP Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Accordingly, it was submitted that the election petition must comply with the requirements of sections 83 and 33 of the RP Act read with Rule 4 and Form no. 2A to 2E of the Conduct of Election Rules, 1961 (hereinafter referred to as the "1961 Rules"), read with the provision of Order VI, Rule 2 CPC, Order VI, Rule 4 CPC, Order IV, Rule 2 CPC.
Submissions on lack of material facts and particulars of corrupt practice of undue influence:
8. Referring to the affidavit in support of the allegations of "commission of corrupt practice of undue influence", it was submitted that statements made in paragraphs 9(B), 11 (partly), 12 (partly), 13, 14, and 20 pertain to allegations of "corrupt practice of undue influence", and that the particulars of such "corrupt practice" as contained in paragraphs 10, 11 (partly), Page No.# 10/52 16, 20, 21, 25, 26, 27 and 28 of the schedule annexed are verified to be true to knowledge, and that the statements made in paragraphs 9(A), 9(C), 9(D), 14 and 16 about the commission of "corrupt practice of undue influence" and particulars of such corrupt practice given in the said petition and in paragraphs 14, 15, 16 (partly), 17, 20 and 22 of the schedule annexed are verified to be true to the information derived by the petitioner from Rehan Uddin Laskar and Anamul Haque (respondent no. 7). In the said context, it was submitted that the petitioner has not pleaded material facts as to who, how, in what manner, on whom, and in which places, the alleged corrupt practice of undue influence has been committed.
9. It was submitted that the Supreme Court of India, while directing that disclosure of certain information are to be made, had not diluted and/or done away the requirement of Section 83 of the RP Act read with the provision of Order VI, Rule 4 of the Code of Civil Procedure (CPC for short). In support of his submissions, the learned senior counsel for the respondent no. 1 has cited the following cases, viz., (i) Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541 (paras 15, 17 & 18) , (ii) U.S. Sasidharan v. K. Karunakaran & Anr., (1989) 4 SCC 482 (para-29), (iii) F.A. Sapa & Ors. v. Singora & Ors., (1991) 3 SCC 375 (paras 15-18, 21 & 29).
10. It has further been submitted that in the affidavit appended to the election petition as per requirement of Rule 94-A of the Conduct of Election Rules, 1961 (1961 Rules for short), paragraphs relating to pleading of material particulars have not been identified, which according to the learned senior counsel for the respondent no. 1, is a substantial and non-curable defect.
Hence, it has been submitted that there is lack of triable issues in respect of Page No.# 11/52 "corrupt practice of undue influence". Hence, it has been submitted that the election petition was liable to be rejected.
Submissions on falsity of educational qualification:
11. By referring to the statements made in column-9 of the affidavit in Form 26 of the 1961 Rules, it was submitted that the allegations against the respondent no. 1 was that in the 2021 elections, he had made a false claim of having educational qualification of Bachelor of Arts (i.e. B.A.), and that in the previous Legislative Election held in the year 2016, the respondent no. 1 had projected that he was having highest educational qualification of Diploma in Engineering.
12. In the said context, it has been submitted that allegations regarding falsity of educational qualification of the respondent no.1 has been made in paragraphs 9, 9(A), 9(B), 10 to 14, 16, 20 to 22 and 26 of the election petition, and reference was made to the affidavit sworn by the respondent no.1 on 11.03.2021, wherein he had declared his educational qualification as " B.A. passed from Ch. Charan Singh University, Meerut in the year 2019". It was submitted that one of the allegations made in paragraphs 9 and 9(A) of the election petition was to the effect that the affidavit in Form 26 filed by the respondent no. 1 along with his nomination paper was invalid and that the defect was substantial in nature as it contained false statements, suppression and misrepresentation of facts with regard to educational qualification. It was also alleged that the respondent no. 1 did not mention about his so-called technical qualification of Diploma in Civil Engineering, in the nomination paper for 2021 election, which the respondent no.1 had disclosed in the nomination of 2016 elections. It was submitted that while the statements made in paragraph 9 Page No.# 12/52 of the election petition was verified to be from knowledge, the statements made in paragraph 9(A) and 9(B) is verified to be partly from knowledge and partly from documents annexed. Hence, it has been submitted that there was total absence of clarity as to which part of the allegations were verified from knowledge and which part was verified to be true as per documents. It was further submitted that the petitioner was heavily relying on a RTI reply (Annexure-8 to election petition) obtained through RTI reply by BJP worker, but there is no explanation that although in the affidavit filed along with the election petition (Annexure-6 to the election petition), the respondent no.1 had disclosed both his permanent and his temporary address, while the RTI query was not made by providing permanent address of the respondent no.1. Hence, it was submitted that as the RTI reply was based on incorrect and misleading RTI query, the said RTI reply could not be called cogent and reliable material to prove the allegations.
13. By referring to statements made in para-10 of the election petition, it has been submitted that Annexure-8 to the election petition was the basis of alleging falsity of educational qualification, but in Annexure-8 to the election petition, the RTI reply does not disclose that the B.A. qualification of the respondent no.1 was false. Moreover, it was submitted that by the said RTI reply, the applicant was asked to provide better particulars of the respondent no.1. Hence, it has been submitted that Annexure-8 to the election petition would not constitute cogent and reliable material to sustain the connected election petition. It was further submitted that Anneuxre-8 to the election petition is not a reliable document and in that regard by referring to the RTI application (Annexure-7 of the election petition), it has been submitted that the RTI applicant had signed the said RTI application in two places, and the date of Page No.# 13/52 application was mentioned as 04.05.2021. However, in the forwarding letter dated 23.04.2021, the date of RTI application is mentioned as 06.04.2021.
Accordingly, it is submitted that the said RTI reply (Annexure-8) cannot be accepted to constitute cogent and reliable material. Therefore, it has been submitted that in the absence of any cogent and reliable materials, it cannot be said that there was any cause of action for the connected election petition. In support of the said statement, reliance is placed on the case of Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 (para-12 and 13).
14. It was submitted that when, how, where and by whom the RTI application and RTI reply were handed over to the election petitioner is not disclosed in the election petition or in para-10 thereof where the petitioner claims that the falsity of educational qualification of the respondent no.1 was established from Annexure-8 to the election petition. It is further submitted that statement made in para-10 of the election petition is partly affirmed from knowledge.
15. It was submitted that although in para-11 of the election petition, it is alleged that the respondent no.1 was only H.S.S.L.C. pass, but the said para-11 is partly affirmed from knowledge and partly from documents. It has also been submitted that in the election petition the petitioner has not disclosed the document on which he had relied to sustain his allegation that the respondent no.1 did not have a Diploma in Engineering. Accordingly, it has been submitted that the said allegation is not supported by any cogent and reliable materials. It was further submitted that in para-11 of the election petition it was stated that "By falsely claiming himself to be a person having a qualification of Page No.# 14/52 BA, the respondent has mislead the voters of LA-10 Sonai LAC and unduly influenced them." However, nowhere in the election petition, any material facts have been disclosed as to how, where, or by whom corrupt practice of undue influence was committed.
16. It has been submitted that in the election petition, it was alleged that on 15.03.2021, he as well as the respondent no.8 had raised an objection before the Returning Officer that the respondent no.1 did not pass B.A. from Chaudhary Charan Singh University. However, the statement made in para-12 of the election petition is affirmed as corrupt practice of undue influence. Therefore, in substance, the petitioner is seeking this Court to embark upon fishing and roving inquiry regarding commission of corrupt practice of undue influence as well as in respect of the educational qualification of the respondent no.1. In the said context, reliance is placed on the case of Dharti Pakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Suppl. SCC 93 (paras 3, 8, 14, 18, 26 & 28) .
17. It has been submitted that in para-12 of the election petition, a statement has been made regarding written objection submitted by the petitioner as well as another candidate namely, Karim Uddin Barbhuiya (respondent no.8) before the Returning Officer about falsity of claim of educational qualification of respondent no.1 as B.A. It has been submitted that the said statement is stated to be material facts constituting corrupt practice of undue influence, but the petitioner has not disclosed as to who, how, when and in what manner the alleged corrupt practice of undue influence was committed. In this regard reliance is placed on the case of D. Venkata Reddy v. R. Sultan and ors., (1976) 2 SCC 455 (para-4).
18. It has been submitted that in the complaint made by respondent Page No.# 15/52 no.8 before the Returning Officer (Annexure-9 to the election petition), the allegation is that from the search made in the website of Chaudhary Charan Singh University does not even offer B.A. course in its curriculum. In this regard an example was cited that the Gauhati University does not impart education in B.A., which is an under-graduate course. Therefore, the correct internet search should have been made to find out whether or not the colleges under and/or recognized by the Chaudhary Charan Singh University offer B.A. course. Hence, it is submitted that the complaint dated 15.03.2021 by the respondent no.8 (Annexure-9 to the election petition) does not constitute cogent and reliable materials to sustain the allegation of corrupt practice of undue influence.
19. By referring to statement made in para-13 of the election petition, it has been alleged that on coming to know about the objection raised by the petitioner and respondent no.8, other candidates had also raised objection and in para-13 of the election petition, it has been alleged that same was commission of corrupt practice of undue influence. However, it has been submitted that there is nothing in the election petition to show as to how an objection by another candidate can constitute commission of corrupt practice of undue influence on part of the respondent no.1.
20. It has been submitted that in para-14 of the election petition, it is alleged that the Returning Officer had failed to exercise his authority under Section 36 of the RP Act as the said authority did not call upon the respondent no.1 to produce further materials regarding his educational qualifications. In the said context it has been submitted that there is no statement in the election petition as to what according to the petitioner would constitute "further materials". It has been submitted that the respondent no.1 was never called to Page No.# 16/52 produce any document. In this regard the learned senior counsel for the respondent no.1 has referred to verification at page-50 of the election petition and it is submitted that statement made in para-15 is stated to be information derived from document and in the said context it was submitted that complaint dated 15.03.2021, submitted by the respondent no.8 is merely a self-serving statement, which would not constitute cogent and reliable material to form the basis of the allegation relating to educational qualification of the respondent no.
1. In the said context it was submitted that in the affidavit sworn in support of the election petition (page 48-49 of the election petition), the correctness of the paragraph made in para-14 has not verified on oath. It was also submitted that statement made in para-14 is sworn in the affidavit as material facts about the commission of the corrupt practice of undue influence. However, para-14 of the election petition does not disclose where, how, when or by whom corrupt practice of undue influence was allegedly committed.
21. By referring to the statement made in para-21 of the election petition, it was submitted that the petitioner had made an RTI application in respect of which reply was awaited and accordingly, it has been submitted that the present election petition has been filed on a presumptive cause of action.
22. By referring to statement made in para-22 of the election petition, it has been submitted that a mention has been made of a FIR dated 20.01.2021, filed by a voter, which was registered as Sonai P.S. Case No. 27/2021 under Sections 420/468/471 of the I.P.C. In the said FIR it was alleged that the respondent no. 1 had submitted a false affidavit in Form-26 in 2016 Assam Legislative Assembly Elections regarding his educational qualification of Diploma in Civil Engineering. In the said regard, it was submitted that para-22 Page No.# 17/52 was affirmed from documents, but the same set of statements are partly verified at page-50 of the election petition. However, in the affidavit under Rule 94-A of the 1961 Rules (at page-51 of the election petition), para-22 is sworn to be regarding particulars of corrupt practice. Accordingly, it has been submitted that statements in para-22 of the election petition would not constitute material facts constituting improper acceptance of nomination paper for 2021 election. It was also stated that the disclosure of qualification of Diploma in Civil Engineering by the respondent no.1 in the 2016 election would have no bearing in respect of the cause of action, if any, for this election petition.
23. By referring to para-26 of the election petition, it has been submitted that in the affidavit sworn in support of the election petition (at page 48-49 of the election petition), the statement made in para-26 are stated submissions of the petitioner. However, as per verification (page 50 of the election petition) the same statement has been verified to be based on knowledge. It has also been submitted that although the petitioner claims that statement made in para-26 is material facts, but has not spelt out as to whether statement relating to material facts constituting improper acceptance in nomination paper or material facts relating to corrupt practice of undue influence.
24. Accordingly, it has been submitted that the election petition fails to disclose cogent and reliable materials to sustain the allegations of corrupt practice of undue influence and therefore, the election petition was liable to be rejected.
Suppression of bank account details with details of bank liability:
25. The learned senior counsel for the respondent no.1 has Page No.# 18/52 submitted that the statement regarding the allegations of the outstanding bank liability are contained in para-9, 9(C), 17, 26 and 28 of the election petition.
26. In respect of the allegations of suppression of bank account details with details of bank liability, and suppression of non-payment of provident fund dues, it was submitted that as per the pleadings in the election petition, the petitioner was a partner of M/s. Allied Concern, which had an outstanding loan, but the said bank account as well as the outstanding loan liability in the said account were concealed/ withheld and not disclosed in the affidavit in Form 26 submitted by the respondent no.1 along with his nomination papers.
27. It has been submitted that in paragraphs 9 and 9(C) of the election petition, it is stated that the respondent no.1 is a partner in M/s. Allied Concern, which availed loan and financial accommodation like cash, credit in two bank accounts and the said bank accounts were declared as Non- Performing Assets (NPA for short) on 31.03.2018 and 31.10.2018 and the total liability in these two bank accounts was more than Rs.10 crore (i.e. Rs.4,93,44,848/- + Rs.5,22,69,565/-). Moreover, it has been alleged in the election petition that the default has not been disclosed in the nomination form of the respondent no.1 (Annexure-6). It was also submitted that in the affidavit accompanying the election petition, the statement made in para-9(C) of the election petition was sworn as information based on documents and was also verified as statement based on document. It has been also submitted that it has not been stated in the election petition that from which document the petitioner has derived his knowledge. In this regard, it is submitted that in the nomination paper of respondent no.1, he had disclosed the liabilities in the said accounts Page No.# 19/52 and therefore, the allegation of non-disclosure was not sustainable.
28. It has further been submitted that in para-26 of the election petition, it was alleged that information was withheld about taking loan from UBI and in this regard the names of few voters who were allegedly being mislead are disclosed to show that those voters were influenced. In the said context it was submitted that the statement made in para-26 of the election petition is verified on oath as submissions before the Court and in the affidavit regarding commission of corrupt practice of undue influence, statement made in para-26 are sworn as true to the knowledge of the petitioner. Thus, it has been submitted that it was not clear to the respondent no. 1 as to the exact nature of the allegation against him so as to effectively respond to the election petition.
29. By referring to para-28 of the election petition, it has been submitted that suppression of bank liability is covered by "corrupt practice of undue influence" under section 123(2) of the RP Act. However, in para-9 of the election petition, non-disclosure of bank liability is alleged to be a "defect of substantial character", which is covered by Section 36(4) of the RP Act. Moreover, it is submitted that in the affidavit (at page-48 of the election petition), the petitioner had verified the statement made in para-28 was true to his information derived from document annexed to the election petition. However, in verification (at page-50 the election petition), statement made in para-28 is verified to be submission before the Court. It has also been pointed out that statement made in para-28 of the election petition was verified in the affidavit filed under Rule 94-A of the 1961 Rules (at page 51 of the election petition) to be "particulars of such corrupt practice of undue influence" but in para-9(C) of the election petition, it is stated that it was substantial defect, Page No.# 20/52 which is otherwise covered under section 36(4) of the RP Act.
30. Moreover, by referring to the statement made in para-17 of the election petition as well as contents of Annexure-14 of the election petition, it is submitted that another candidate, namely, Anamul Hoque (respondent no.7) had made a compliant dated 18.03.2021 before the Chief Electoral Officer that outstanding loan of the respondent no.1 was Rs.6 crore and it was further stated that the loan was either in the name of respondent no.1 or in the name of the firm, and therefore, it has been submitted that the said statement does not tally with the allegations made in para-9(C) of the election petition, where outstanding loan is mentioned as Rs.10 crore in respect of two bank accounts. It is also submitted that Annexure-13 to the election petition, relating to allegations made in para-17 of the election petition, does not disclose if any money was shown outstanding against the respondent no. 1. Moreover, it is also submitted that in the affidavit (at page-48 of the election petition), the statement made in para-17 is verified as information derived from the document, and verified from knowledge in the verification (at page-50 of election petition).
31. Accordingly, it is submitted that the materials referred to in the election petition with regard to allegation of outstanding bank liability do not disclose any cause of action and by making those vague allegations, the petitioner is seeking fishing and roving inquiry from the Court, which ought not to be done.
Allegation of Provident Fund default committed by the Firm of the respondent no.1, namely, M/s. Allied Concern:
32. In this regard it has been submitted that the allegation in respect Page No.# 21/52 of provident fund in default are made in paragraph 9(D), 15, 16 and 26. It is submitted that as per statement made in para-15 of the election petition, one Rehan Uddin Laskar had filed RTI petition to seek information about provident fund default of M/s. Allied Concern. In the said context it was submitted that the statement made in para-15 of the election petition are neither affirmed in the affidavit filed in support of the election petition (pages 48-49 and 51-52 of the election petition), nor it is verified to be true (at page 50 of the election petition). Therefore, by placing reliance on the case of Kisan Shankar Kathore Vs. Arun Dattatray Sawant & Ors., (2014) 14 SCC 162 (para-38) , it is submitted that non-disclosure of disputed Government dues was not a substantive defect in the nomination. It is also submitted that the RTI reply annexed to the election petition does not mention about any existing default but it refers to an existing dispute.
33. By referring to the various statements made in the election petition as well as the documents annexed thereto, as well as the (i) verification; (ii) affidavit; and (iii) affidavit in Form 25, it has been submitted that on a conjoint reading of the same, it is not clear as to whether a particular allegation was verified on the basis of record or knowledge. In this regard, it has been submitted that as per the election laws developed by various judgments of the Supreme Court of India, it was the mandate of the law that the pleadings must be specific in so far as it related to "material fact"
substantiated with "cogent material", which may also be supplemented by material particulars. Accordingly, it has been submitted that in the absence thereof, the present election petition is liable to be rejected, as it is a defect of substantial nature and is not a curable defect.
Page No.# 22/52 Submissions as to how the statements made in the election petition are barred by law:
34. It has been submitted that in India the principles of a ' casus omissus' is not followed in the trial of election petition. Accordingly, it has been submitted that as the instant grounds for presentation of election petition has not been spelt out by the petitioner, the election petition has been presented in violation of the requirements of Section 81(1) of the RP Act and therefore, the election petition was liable to be rejected. It has been submitted that as the election of the respondent no. 1 has been challenged by alleging corrupt practice of undue influence, the election trial partakes the character of proceeding which is quasi-judicial in nature. In this context, reliance has been placed on the case of (i) Muniraju Gowda P.M. v. Munirathna & Ors., (2020) 10 SCC 192 (paras 14-15), (ii) Samant N. Balakrishna & Anr. v. George Fernandez & Ors., (1969) 3 SCC 238 (paras 35 & 37) , (iii) F.A. Sapa & Ors. (supra) (paras 15-18 & 29).
35. It has been submitted that Section 80 of the RP Act lays down that "no election shall be called in question except by an election petition presented in accordance with the provisions of this part.", i.e. Part-VI (Sections 79 to 122). In the said context, it has been submitted that though in the election petition it has been alleged that there was corrupt practice of undue influence, the affidavit in support of such allegations is not in the form prescribed under Section 94-A of the 1961 Rules. Hence, it has been submitted that as the election petition has not been presented in accordance with Section 81(1) of RP Act and Chapter-VIII-A, Rule 1 of the Gauhati High Court Rules, the election petition was liable to be rejected and/or dismissed under Section 86(1) of the RP Act. In support of the said contention, reliance has been placed on the Page No.# 23/52 case of F.A. Sapa & Ors. (supra) . Alternatively, it has been submitted that as per the affidavit in Form 25 under Rule 94-A of the 1961 Rules does not disclose pleading of material particulars in support of the allegations of corrupt practice, there is no cause of action with triable issues in this election petition. In support of the said submission, reliance is placed on the case of U.S. Sasidharan (supra) (paras 12, 15-17 & 29).
36. It has been submitted that the schedule relating to allegations of corrupt practice under Form-25 does not contain any paragraph and therefore, the defect is substantial in nature and not curable.
37. It has been submitted that the basis of the pleadings in the plaint is vague. The statements in some of the paragraphs are verified to be true to knowledge, and also sworn to be matters of record and/or verified as submissions before the Court for which the election petition is liable to be rejected at the threshold. In this regard, reliance has been placed on the case of L.R. Shivaramagowda & Ors. v. T.M. Chandrashekhar & Ors., (1999) 1 SCC 666 [paras 6, 16(a)].
38. It has been submitted that owing to failure on part of the petitioner to pray for (i) a declaration that the result of the election has been materially affected due to improper acceptance of nomination paper of the respondent no. 1 due to falsity in affidavit, and (ii) a declaration that the respondent no. 1 had committed corrupt practice of undue influence, the election petition was liable to be dismissed. In the said context, it has been submitted that the provisions of Section 98 and 99 of the RP Act has to be conjointly read together.
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39. It has also been submitted that the copy of the election petition, as served to the petitioner does not contain endorsement by the Notary and/or Oath Commissioner.
40. It has also been submitted that the copy of the objection submitted by the petitioner to this interlocutory application also does not contain verification as required under Order VI, Rule 15 CPC in violation of the requirement of Order IV, Rule 1 CPC.
41. Apart from the cases mentioned herein before, the learned senior counsel for the respondent no. 1 has also cited the following cases, viz.,
(i) G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 (paras 2, 36, 37, 39, 40, 44, 47, 52 & 62), (ii) Mahendra Pal v. Ram Dass Malangar & Ors., (2000) 1 SCC 261 (para-7), (iii) Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169 (paras 54, 55, 57), (iv) Shiv Charan Singh v. Chandra Bhan Singh, (1988) 2 SCC 12, (v) Azhar Hussain v. Rajiv Gandhi, (1986) Suppl. SCC 315 (para 8-12, 14, 21, 22, 25, 31, 35, 38), (vi) M. Karunanidhi v. H.V. Hande & Ors., (1983) 2 SCC 473 (paras 27, 32), (vii) Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 (paras 15, 17, 19-22 & 25), (viii) Sahodrabai Rai v. Ram Singh Aharwar & Ors., AIR 1968 SC 1079 (para 12), (ix) Union of India v. Association of Democratic Reforms, (2002) 5 SCC 294 (paras 48 and 49), (x) PUCL v. Union of India, (2003) 4 SCC 399 (paras 73 and 122), (xi) Resurgence India v. Election Commission of India, (2014) 14 SCC 189 (paras 13, 27 and 29), (xii) Krishnamoorthy v. Sivakumar & Ors., (2015) 3 SCC 467 (paras 42-F, 75 and 94),
(xiii) Mairembam Prithviraj @ Prithviraj Singh v. Pukhrem Sharat Chandra Singh, (2017) 2 SCC 487 (paras 2 and 14), (xiv) Lok Prahari, Through its General Secretary S.N. Shukla v. Union of India & Ors, (2018) 4 SCC 699 (para 81), and Page No.# 25/52
(xv) Public Interest Foundation v. Union of India & Anr. (2019) 3 SCC 224 (para
116).
42. The learned senior counsel for the respondent no. 1 has submitted a written synopsis of argument, which is kept on record.
Submissions by the learned senior counsel for the election petitioner (opposite party in this interlocutory application):
43. The learned senior counsel for the petitioner has submitted that the petitioner has challenged the election of the respondent no. 1 on the grounds of (i) improper acceptance of nomination paper, which is covered by Section 100(1)(d)(i) of the RP Act; and (ii) corrupt practice of undue influence, which is covered by the provision of Section 100(1)(d) of the RP Act.
44. It has been submitted that even if the allegations as envisaged under Section 123 is not there in the election petition, if the petitioner is able to prove suppression of material facts, the commission of corrupt practice stands proved.
45. It has been submitted that there are sufficient pleadings regarding material facts as well as material particulars. In the said context, by referring to the RTI reply annexed to the election petition, the reply dated 23.04.2021 (Annexure-8) (English translated version) is that "... in respect of the B.A. Examination of this University (Private and Institutional) for the year 2019, no candidate namely Karim Uddin Barbhuiya s/o Late Rahim Uddin Barbhuiya was enlisted. Even then, if any serial number or roll number of Karim Uddin Barbhuiya s/o Late Rahim Uddin Barbhuiya is made available, detailed description may be given in that regard ." Thus, the reply was to the effect that Page No.# 26/52 the respondent no. 1 was not an examinee in the B.A. Examination for the year 2019 from Chaudhary Charan Singh University. Therefore, the election petition contains pleading that the respondent no. 1 had made false claim for possessing educational qualification of B.A.
46. It has also been submitted that the election petition contains pleadings to the effect that the provident fund liability of the petitioner remained unpaid, which is Government dues. Therefore, the Court has power to hold that the nomination paper of the respondent no. 1 was defective. It has been also submitted that the Court would merely see if any amount of Government payment is due or not and at this stage Court would not examine the standard of proof.
47. It has been submitted that the petitioner has specifically pleaded regarding misrepresentation and suppression of material facts. Therefore, there is cause of action on part of the petitioner to challenge the election of the respondent no. 1.
48. In support of his submissions, the learned senior counsel for the petitioner has cited the following cases, viz., (i) Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCC 850, (ii) I.T.C. Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, (iii) D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267,
(iv) Union of India v. Association for Democratic Reforms & Anr., (2002) 5 SCC 294 (paras 1 - 6, 11, 30, 31, 38, 45, 46 & 48) , (v) Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., (2004) 7 SCC 181, (vi) Harikat Singh v. Amrinder Singh, (2005) 13 SCC 511, (vii) Om Prakash Srivastava v. Union of India, (2006) 6 SCC 207, (viii) Peoples Union for Civil Liberties & Anr. v. Union of India & Anr., (2003) 4 SCC 399 (paras 1, 5 - 7, 16 - 18, 70 - 73, 79, 123) , (ix) Church of Page No.# 27/52 Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706, (x) Harikrishna Lal v. Babu Lal Marandi, (2003) 8 SCC 613 (para-12) , (xi) Kisan Shankar Kathore v. Arun Dattatray Sawant & Ors., (2014) 14 SCC 162 (paras 1, 2, 5, 11 - 15, 43) , (xii) Resurgence India v. Election Commission of India, (2014) 14 SCC 189 (para-29) , (xiii) Krishnamoorthy v. Sivakumar & Ors., (2015) 3 SCC 467 (paragraphs 38, 58 &
91), (xiv) Mairembam Prithviraj v. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487 (paragraphs 2-4, 8, 14-19, 21-23, 25 & 26) , (xv) Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 , (xvi) Lok Prahari v. Union of India, (2018) 4 SCC 699, (xvii) Gyoki Masajuki Maeda v. Aisha Constructions, 1998 SCC OnLine Bom 717, (xviii) Gauri Venkatraman v. Vasantrao, 2020 SCC OnLine Bom 161.
49. The following points of determination arise in this case:-
a. Whether there is lack of material facts and particulars of corrupt practice of undue influence in the election petition for which the election petition is liable to be rejected under Order VII, Rule 11 CPC? b. Whether the manner in which the statement made in the election petition is verified in the verification, affidavit in support of the election petition and affidavit under Rule 94-A of the 1961 Rules are sufficient to reject the election petition under Order VII, Rule 11 CPC? c. Whether or not there is cause of action for the election petition?
Reasons and decision:
50. At the outset, the provisions of Section 100, 101 and 123 of the RP Act are quoted below for ready reference:-
"100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Page No.# 28/52 Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(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. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
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* * *
123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1) "Bribery", that is to say,--
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing--
(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to--
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.
Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or Page No.# 30/52
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause. (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation.--For the purposes of this clause, "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).
(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. (5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person, with the consent of a candidate or his election agent or the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself, the members of his Page No.# 31/52 family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation.--In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(6) The incurring or authorizing of expenditure in contravention of section 77. (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person whether or not in the service of the Government and belonging to any of the following classes, namely:--
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such Page No.# 32/52 arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.
(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.
(8) Booth capturing by a candidate or his agent or other person.
Explanation.--(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. (2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent of that candidate.
(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof--
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date.
(4) For the purposes of clause (8), "booth capturing" shall have the same meaning as in section 135A(1)."
51. In the case of Association for Democratic Reforms (supra), the Supreme Court of India had directed that information relating to (i) conviction/acquittal/ discharge of a candidate in any criminal offence, and whether prior to 6 (six) months of filing of nomination, the candidate is accused in any pending case where punishment is imprisonment for 2 (two) years or more, in which charge is framed or cognizance is taken by the Court, (ii) assets Page No.# 33/52 (immovable, movable, bank balance, etc., (iii) liabilities payable to any public financial institution of government dues, and (iv) educational qualification be called for by issuing necessary order under Article 324 of the Constitution of India. This led to incorporation of the provision of Sections 33A and 33B in the RP Act. In the decision of Peoples Union for Civil Liberties (supra), it was held that the voter has a right to know about the assets/ antecedents/educational qualification of candidates contesting in elections to Parliament or Legislative Assembly, holding it to be a facet of Article 19(1)(a) of the Constitution of India. In the case of Kisan Shankar Kathore (supra) , the Supreme Court of India had laid down to the effect that when it is proved that there is non-disclosure or suppression of material information, it can be held that nomination paper was improperly accepted. Thereafter, in the case of Krishnamoorthy (supra), the Supreme Court of India had held that once non-disclosure is established, it would amount to corrupt practice of undue influence.
In the matter of educational qualification of the respondent no. 1 (elected/ returned candidate):
52. In para-9(A) of the connected election petition, it has been alleged to the effect that in column-9 of his affidavit in Form-26 of the Rules, appended to the nomination paper filed in respect of the election held in the year 2021, the respondent no.1 had disclosed to the effect that his educational qualification was Bachelor of Arts Degree from Choudhury ( sic.) Charan Singh University, Meerut, U.P. It was further stated that the same is false because the respondent no. 1 never passed B.A. from the said University or from any other institution or University.
53. In para-9(B) of the connected election petition, it has been Page No.# 34/52 stated that the respondent no. 1 had suppressed and/or not mentioned about his Diploma in Civil Engineering in the present nomination, which was mentioned in his affidavit in Form-26 submitted by him along with his nomination paper filed in respect of the General Election held in the year 2016 when he had contested from LA-10 Sonai LAC as a nominee from AIUDF and that no explanation has been provided in the present affidavit of Form-26 for not mentioning his said technical qualification.
54. On a conjoint reading of statement made in paragraphs 9, 9(A), 9(B), 10 to 14, 16, 20 to 22 and 26 of the election petition, it is seen that statements made in paragraphs 9(B), 11 (partly), 12 (partly), 13, 14 and 20 relates to allegations of "corrupt practice of undue influence. The statement made in para-9 is sworn from knowledge, those made in para-9(A) and 9(B) are sworn partly from knowledge and partly from documents annexed. Para-9 of the affidavit sworn on 11.03.2021 by the respondent no.1 contains the statement that his educational qualification is B.A. passed from Ch. Charan Singh University, Meerut in the year 2019.
55. As per statement made in para-10 of the Election Petition, one Qazi M. Abbasi, a BJP Worker had submitted a RTI application to the Registrar/ Public Information Officer of Chaudhary Charan Singh University, Meerut, amongst others, for information as to whether Karim Uddin Barbhuiya, s/o. Late Rahim Uddin Barbhuiya, resident of Dhonehari Part-II, P.O. Sildubi, P.S. Sonai, District Cachar, Assam has been awarded B.A. (Bachelor of Arts) degree by the said University. Accordingly, the said applicant had been provided with RTI reply dated 23.04.2021 that no person by the name of Karim Uddin Barbhuiya had appeared in the B.A. Examination in the year 2019 either as a private or as an Page No.# 35/52 institutional candidate.
56. The learned senior counsel for the respondent no.1 had demonstrated that the RTI application was dated 04.05.2021, and the said application contained signature of the applicant with date "4/5/21". The receipt clerk of the said Chaudhary Charan Singh University had received the application under rubber stamp with hand-written date "05/4/21". However, in the forwarding letter no. 24061/11746 dated 23.04.21, the date of RTI application by the applicant is mentioned as "6-4-21". Therefore, without proving the RTI reply in accordance with law, the said RTI reply cannot be the basis for the Court to hold that the RTI reply dated 23.04.2021 was conclusive proof in support of the allegation that the respondent no.1 did not earn his B.A. Degree from the University concerned.
57. Now it has to be determined as to whether the election petitioner has prima facie been able to demonstrate that there was suppression by the respondent no. 1 that as per affidavit filed in 2016 General Election, his disclosed technical qualification of Diploma in Civil Engineering was suppressed in the 2021 Assembly Election.
58. In the connected election petition, the petitioner has annexed the copy of the affidavit in Form-26 sworn on 18.03.2016, submitted by the respondent no. 1 along with his nomination paper. In para-10 of the said affidavit, the respondent no. 1 has disclosed that his educational qualification is "Higher Secondary passed from G.C. College in 1987 and Diploma in Engineering in 1990". The election petitioner has stated in the election petition that the said affidavit sworn on 18.03.2016 was submitted by the respondent Page No.# 36/52 no. 1 in the General Elections held in 2016, but the same was suppressed in the General Elections 2021. There are no materials on record on the basis of which the copy of the said affidavit (Annexure-20), can prima facie be held to be bogus and resultantly, the allegations in the election petition to the effect that the educational qualification was suppressed cannot be held to be vexatious and/or meritless. Accordingly, the Court is inclined to hold that the pleadings and documents in the election petition relating to educational qualification of the respondent no.1 discloses cause of action to maintain election petition. Resultantly, the case of Church of Christ Charitable Trust & Educational Charitable Society (supra), is not found to help the respondent no. 1 in this case. Para 12 and 13 thereof, on which the learned senior counsel for the respondent no.1 has relied upon, are extracted below:-
"12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal & Anr., (1977) 4 SCC 467, wherein while considering the very same provision, i.e. Order VII Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation:
"5. ... The learned Munsif must remember that if on a meaningful - for formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them."
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer, J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.
Cause of action:
Page No.# 37/52
13. While scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue."
59. In respect of "cause of action", we may refer to para-14 and 15 of the case of Church of Christ Charitable Trust & Educational Charitable Society (supra), cited by the learned senior counsel for the respondent no.1, which are quoted below:-
"14. In A.B.C. Laminart (P) Ltd. v. A.P. Agencies, (1989) 2 SCC 163, this Court explained the meaning of "cause of action" as follows:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
15. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai, (1994) 6 SCC 322, wherein a three-Judge Bench of this Court held as under:
"28. By 'cause of action' it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, [Cooke v. Gill, (1873) LR 8 CP 107]. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit."
Page No.# 38/52 It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit."
60. In the connected election petition, the petitioner has made specific statement to the effect that the respondent no. 1 did not mention about his Diploma in Civil Engineering in the present nomination paper which was mentioned in the affidavit in Form-26 submitted by him along with his nomination paper in 2016 General Election when he had contested from LA-10 Sonai LAC as a nominee of AIUDF. Moreover, to demonstrate the same, the petitioner has annexed the (i) copy of affidavit in Form-26 purportedly sworn by the petitioner on 11.03.2021 (Annexure-6), and (ii) copy of affidavit in Form-26 purportedly sworn by the petitioner on 18.03.2016 (Annexure-20).
61. Therefore, the Court is of the considered opinion that cause of action for the election petition exists in this case because in the case of Association for Democratic Reforms (supra) , the Supreme Court of India had directed the Election Commission of India to call for information on affidavit, amongst others, regarding educational qualification. Moreover, in the case of Krishnamoorthy (supra), the Supreme Court of India had, inter alia, held to the effect that in an election petition, the election petitioner is required to assert about how there has been non- disclosure in the affidavit and once that is established, it would amount to corrupt practice. It is also well settled that even if objection is not raised before the Returning Officer, the election petitioner can raise objection before the Court in Election Petition. If one needs an authority on the point, the case of Harikrishna Lal (supra), cited by the learned senior counsel for the election petitioner may be referred to.
In the matter of provident fund dues:
Page No.# 39/52
62. In para-9(D) of the election petition, the pleaded case of the petitioner is to the effect that the partners of M/s. Allied Concern including respondent no. 1 were instructed/ directed to appear with records, but they had defaulted to respond for which the enquiry could not proceed further and as a result of which the proceeding initiated under the EPF & MP Act, 1952 could not proceed further. It was also stated that default was not deliberately mentioned by the respondent no. 1 in his affidavit in Form 26. In para-15 of the election petition, it was stated that the petitioner could learn about such default from one Rehan Uddin Laskar, President of Samajik Bikash Parishad, who was apprised of it vide RTI reply dated 16.03.2021 from the Assistant Provident Fund Commissioner. In para-16 of the election petition, it was pleaded that the respondent no. 8 had lodged a complaint dated 17.03.2021 before the Returning Officer, LA-10, Sonai Legislative Assembly with a prayer for cancellation of the candidature on the ground of being a defaulter in making employer's contribution to the provident fund of employees. In para-26 of the election petition, it was stated that by suppressing information about default in making deposit of provident fund, the respondent no. 1 had misled and unduly influenced the voters, who would not have voted for the respondent no. 1.
63. The contents of the RTI reply dated 16.03.2021 (Annexure-11 to the writ petition) is quoted below:-
"Subject: Information in connection with the workers engaged in M/s. Allied Concern, Dhanehari P-II, Sildubi owned by Karim Uddin Barbhuiya @ Saju Barbhuiya- Regarding.
Sir, With reference to your letter dated 12/03/2021 it is to inform you-
(1) That the establishment of M/s Allied Concern of Dhanchari Pt-II, Sildubi, Dist: Cachar Assam has defaulted in making payment to the Fund in respect of Page No.# 40/52 employees since August/2007 till date;
(2) That as per system generated report payment for 2 (two) persons is found remitted for the months of January/2018 to March/2018 only; (3) That as the establishment was a defaulter, an Inquiry U/s 7A(1)(b) of the EPF & MP Act, 1952 was initiated for the period from August/2007 to March/2019 against the establishment and the employers (partners) were Summoned to appear with records for assessment of dues payable to the Fund vide this office notice dated 31/05/2019. The employer also been intimated to appear virtually on several occasions, but the inquiry has been pending so far due to non-appearance & non- submission of records by the employers of the said establishment of M/s Allied Concern. As such dues payable to the Fund for the period of default could not be ascertained.
Please note that an Inquiry U/s 7A(1)(b) is a quasi-judicial action in order to determine the amount due from an employer of an establishment covered under the EPF & MP Act, 1952."
64. The provision of Section 7A of the Employees' Provident Fund & Misc. Provisions Act, 1952 is quoted below:-
"7-A. Determination of moneys due from employers.
(1) The Central Provident Fund Commissioner, any Additional Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner, any Regional Provident Fund Commissioner, or any Assistant Provident Fund Commissioner may, by order, -
(a) * * *
(b) Determine the amount due from any employer under any provision of this Act, the Scheme of the Pension Scheme or the Insurance Scheme, as the case may be; and for any of the aforesaid purposes may conduct such inquiry as he may deem necessary."
65. Therefore, it is apparent that as on 16.03.2021, the Employees' Provident Fund Organisation had not finally determined under Section 7A(1)(b) of the said Act of 1952 that the respondent no. 1 was a defaulter because as per the said RTI reply, the quasi judicial enquiry had not yet concluded.
66. Therefore, when the alleged provident fund dues, if any, of the Page No.# 41/52 respondent no. 1 is not determined, the Court is inclined to hold that in the absence of determination of provident fund liability, the non-disclosure of such liability by the respondent no.1 in his affidavit filed under Form-26 of the 1961 Rules would not be fatal to invite the peril of setting aside of the election of the respondent no. 1. In this connection, the Court finds support from the case of Kisan Shankar Kathore (supra) cited by the learned senior counsel for the respondent no. 1. Para 34 thereof is quoted below:-
"34. With these remarks we proceed to deal with the first aspect. Insofar as non-disclosure of the electricity dues is concerned, in the given facts of the case, we are of the opinion that it may not be a serious lapse. No doubt, the dues were outstanding, at the same time, there was a bona fide dispute about the outstanding dues in respect of the first electricity meter. It would have been better on the part of the appellant to give the information along with a note about the dispute, as suggested by the High Court, we still feel that when the appellant nurtured belief in a bona fide manner that because of the said dispute he is not to give the information about the outstanding amount, as it had not become 'payable', this should not be treated as a material lapse. Likewise, as far as the second electricity meter is concerned, it was in the premises which was rented out to the tenants and the dues were payable by the tenants in the first instance. Again, in such circumstances, one can bona fide believe that the tenants would pay the outstanding amount. No doubt, if the tenants do not pay the amount the liability would have been that of the owner, i.e. the appellant. However, at the time of filing the nomination, the appellant could not presume that the tenants would not pay the amount and, therefore, it had become his liability. Same is the position with regard to non-payment of a sum of Rs.1,783 as outstanding municipal dues, where there was a genuine dispute as to revaluation and reassessment for the purpose of assessing the taxes was yet to be undertaken. Having said so, we may clarify that it would depend in the facts and circumstances of each case as to whether such a non-disclosure would amount to material lapse or not. We are, thus, clarifying that our aforesaid observation in the facts of the present case should not be treated as having general application ."
In the matter of outstanding liability of bank loan:
67. The statement regarding purported outstanding liability of bank loan has been made in para- 9, 9(C), 17, 26 and 28 of the election petition. In Page No.# 42/52 para-9 it has been stated to the effect that in the affidavit in Form-26, there has been a suppression of his liability in respect of the loan availed by him by way of a cash credit limit for a partnership firm M/s. Allied Concern, where the respondent no. 1 is a partner. The said statement appears to be prima facie supported by purported loan status of account no. 0472250401111 of UBI (PNB), Tarapur Branch of M/s. Allied Concern (Annexure-13), reflecting that the account is a NPA i.e. non- performing asset.
68. This allegation appears to have been countered by the learned senior counsel for the respondent no.1 by showing that in his affidavit in Form- 26 (pp.138), the respondent no. 1 had disclosed about the outstanding liability in respect of the said bank account to the extent of Rs.1,36,50,000/-.
69. However, whether or not there has been a false declaration has to be determined in the election petition.
In the matter of outstanding liability of provident fund:
70. In respect of provident funds dues allegedly payable by the respondent no.1 in respect of M/s. Allied Concern, the firm of the respondent no. 1 is concerned, pleadings have been made in paragraphs 9(D), 15, 16 and 26 of the election petition. As per (a) the affidavit filed in support of the election petition, (b) verification, and (c) affidavit under Rule 94-A of 1961 Rules, the said statements are affirmed/ verified as under:-
a. affidavit in support of election petition (page 48 - 49 of election petition):
(1) That I am the petitioner in this present election petition as such I am fully conversant about the facts and circumstances of the case and I am competent to swear this affidavit.
Page No.# 43/52
2) That the statements made in this affidavit and those made in paragraph Nos. 1, 2, 3, 7, 8, 9(B), 10 (partly), 11 (Partly), 12, 13, 16 (Partly), 18, 19, 21, 25, 34, 35,36 and 37 are true to the best of my knowledge and I believe them to be true and those made in paragraph Nos. 4, 5, 6, 8, 9, 9(A), 9(C), 9(D), 11 (Partly), 16 (Partly), 17, 20, 22, 23, 24,, 27 and 28 are true to my Information derived from the documents annexed and Rehan Uddin Laskar and Anamul Haque (respondent No. 7) and those made in paragraph Nos. 26, 29, 30, 31, 32, 33 are my humble submissions before this Hon'ble Court.
b. verification (page-50 of election petition):
I, Aminul Haque Laskar, S/o Late Ala Uddin Laskar, aged about 55 years, resident of Berenga Part-II, P.O.-Berenga, P.S.-Silchar, district-Cachar, Assam, do hereby verify and state that:-
1. The statements made in this verification and those made in paragraph Nos. 1, 2, 3, 7, 8, 9(A)(partly), 9(B)(partly), 10(partly), 11, 12, 13, 17, 18, 19(partly), 20, 21(partly), 25(partly), 26, and 27 are true to the best of my knowledge and I believe them to be true and those made in paragraph Nos. 4, 5, 6, 8, 9, 9(A) (partly), 9(B)(partly), 9(C), 9(D), 10(partly), 13, 14, 16, 19(partly), 21(partly), 22(partly), 23, 24, 25(partly) are true to my information derived from the documents annexed and Rehan Uddin Laskar and Anamul Haque (respondent No. 7) and those made in paragraph Nos. 28, 29, 30, 31, 32, 33 and 34 are my humble submissions before this Hon'ble Court.
And I sign this verification on this 4 th day of June, 2021 at Page No.# 44/52 Guwahati.
c. affidavit under Rule 94-A of 1961 Rules (page 51 - 52 of election petition):
(a) that the statements made in paragraphs- 9(B), 11 (Partly), 12(Partly), 13, 14 20 of the accompanying election petition about the commission of the corrupt practice of undue influence and particulars of such corrupt practice mentioned in the paragraphs-
10, 11(partly), 16, 20, 21 25, 26, 27 and 28 of the schedule annexed thereto are true to my knowledge;
(b) that the statements made in paragraphs-9(A), 9(C), 9(D), 14 and 16 (Partly) of the said petition about the commission of the corrupt practice of undue influence and the particulars of such corrupt practice given in paragraphs of the said petition and in paragraphs-14, 15, 16 (Partly), 17, 20 and 22 Schedule annexed thereto are true to my information derived from Rehan Uddin Laskar and respondent No. 7 (Anamul Haque) respectively. d. Schedule of act of corrupt practice committed by respondent no.1:
(1) False statement made by the Respondent No.1 in his FORM-26 Affidavit regarding his B.A. Qualification claimed to be obtained from Choudhury Charan Singh University, Merrut.
(2) Non- Disclosure/ Suppression of facts regarding liabilities/refundable loan of the Respondent No. 1 in respect of A/C No. 0472250401111 and A/C No. 0472250401821 of United Bank of India (PNB), Tarapur Branch at Silchar whereby he availed loan by way of Cash Credit limit (3) Non-disclosure/ suppression of facts that the Respondent No. Page No.# 45/52 1 is a defaulter in making deposit of employer contribution of Provident Fund for the employee of M/S ALLIED CONCERN wherein the Respondent No. 1 is a Partner.
71. Thus, the learned senior counsel for the respondent no. 1 has demonstrated that the statement made in para-15 of the election petition is not verified in the affidavit (pg.48-49), verification (pg.50) and affidavit in Form 25 (pg.51). However, the statement regarding defaulter in making deposit of employer's contribution of provident fund as mentioned in the Schedule regarding act of corrupt practice committed by respondent no.1 is verified in the affidavit in Form-25 (pg.51-52).
72. In this regard, the learned senior counsel for the respondent no. 1 has relied on para-34 of the case of Kisan Shankar Kathore (supra), which is quoted below:-
"34. With these remarks we proceed to deal with the first aspect. Insofar as non-disclosure of the electricity dues is concerned, in the given facts of the case, we are of the opinion that it may not be a serious lapse. No doubt, the dues were outstanding, at the same time, there was a bona fide dispute about the outstanding dues in respect of the first electricity meter. It would have been better on the part of the appellant to give the information along with a note about the dispute, as suggested by the High Court, we still feel that when the appellant nurtured belief in a bona fide manner that because of the said dispute he is not to give the information about the outstanding amount, as it had not become "payable", this should not be treated as a material lapse. Likewise, as far as the second electricity meter is concerned, it was in the premises which was rented out to the tenants and the dues were payable by the tenants in the first instance. Again, in such circumstances, one can bona fide believe that the tenants would pay the outstanding amount. No doubt, if the tenants do not pay the amount the liability would have been that of the owner, i.e. the appellant. However, at the time of filing the nomination, the appellant could not presume that the tenants would not pay the amount and, therefore, it had become his liability. Same is the position with regard to non-payment of a sum of Rs.1,783/- as outstanding municipal dues, Page No.# 46/52 where there was a genuine dispute as to revaluation and reassessment for the purpose of assessing the taxes was yet to be undertaken. Having said so, we may clarify that it would depend in the facts and circumstances of each case as to whether such a non-disclosure would amount to material lapse or not. We are, thus, clarifying that our aforesaid observation in the facts of the present case should not be treated as having general application ."
73. In this case, the respondent no. 1 has not filed the written statement due to pendency of this interlocutory application. Therefore, on record the respondent no. 1 has not taken any defence regarding dispute, if any, in respect of provident fund dues. Therefore, this issue would be subject to determination in the trial of the election petition.
Whether the lack of pleading in the election petition that how and in what manner the result of the election was materially affected:
74. By relying on para-26 of the case of Mairembam Prithviraj (supra), the learned senior counsel for the respondent no. 1 has submitted that there is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted. It may be mentioned that in the said case, two candidates had filed their nomination in respect of Moirang Assembly Constituency for being elected to 10th Manipur Legislative Assembly. The respondent had objected to the nomination of the appellant at the time of scrutiny of nominations on the ground that false declaration relating to educational qualification was made by the appellant. The Returning Officer directed the appellant to submit documents in proof of his educational qualification as declared in the affidavit filed under Form 26. The appellant failed to produce any document as proof of his educational qualification in spite of which the Returning Officer accepted the nomination of the appellant. The appellant Page No.# 47/52 secured 14,521 votes and the respondent secured 13,363 votes and the appellant was declared elected from Moirang Assembly Constituency. The election was challenged by filing election petition. The appellant denied the allegation of false declaration and according to the appellant, the declaration made by him that he had passed Master of Business Administration (MBA) in the year 2004 from Mysore University was a clerical error. The respondent abandoned the allegation of corrupt practices and other electoral malpractices during trial. The High Court concluded that the declaration made by the Appellant in Form 26 about his educational qualification as MBA from Mysore University was false. The plea of the Appellant that the defect in Form 26 was due to a clerical error was rejected. The contention of the Appellant that providing wrong information about the educational qualification was not a defect of substantial character was also rejected. The Appellant contended that the Respondent failed to plead and prove that the result was 'materially affected' as required under Section 100 (1) (d) of the Act. The High Court did not accept the said contention on the ground that there were only two candidates in the fray in which case it was not necessary to prove that the result of election of the returned candidate was materially affected. The High Court further held if it is found that the Appellant's nomination was improperly accepted, the result of his election stood automatically affected materially. The High Court on the basis of the above reasons declared the election of the Appellant as void. The judgment of the High Court was assailed by the Appellant before the Supreme Court of India. The Supreme Court of India observed and held as under:-
26. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void under Section 100 (1)(d).
There has to be further pleading and proof that the result of the election of the returned candidate was materially affected. But, there would be no necessity of any proof in the event of the nomination of a returned candidate being declared as Page No.# 48/52 having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not applicable to the facts of this case. The submission that Durai Muthuswami is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non- compliance of Section 100 (1)(d). The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100 (1)(d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted.
On cases cited by the learned senior counsel for the respondent no.1:
75. In order to portray the legal history behind the requirement of a candidate for furnishing additional information along with the nomination form, the learned senior counsel for the respondent no. 1 had cited the case of (i) Association for Democratic Reforms (supra) , (ii) Peoples Union for Civil Liberties (supra), (iii) Resurgence India (supra), Kisan Shankar Kathore (supra), (iv) Krishnamoorthy (supra), (v) Mairembam Prithviraj (supra), (vi) Lok Prahari (supra), (vii) Public Interest Foundation (supra). Submissions were also made regarding insertion of Section 33A and 33B in the Representation of the People Act, 1951. Some of these cases have already been referred herein before. In view of the reason these cases were cited, we need not burden this order with further discussion on the said cases.
76. The case of Church of Christ Charitable Trust & Educational Charitable Society (supra) had been cited to impress upon the Court that cause Page No.# 49/52 of action is each and every essential fact which the plaintiff has to prove to establish to a judgment from a Court. This case would not entirely help the respondent no. 1 because of one ground, i.e. suppression of educational qualification of Diploma in Civil Engineering, which was disclosed in 2016 Election.
77. The case of Dhartipakar Madan Lal Agarwal (supra) was cited to supplement the submissions that in an election petition the Court cannot involve in roving and fishing inquiry and that pleadings regarding corrupt practice must be strictly examined because vague pleadings are fatal for an election petition and that ingredients of corrupt practice such as type and manner of corrupt practice has to be specifically pleaded. The said well settled legal proposition is not at all disputed. This case would be dealt with later.
78. The case of Hardwari Lal (supra) and Manohar Joshi (supra) were cited to impress upon the Court that the corrupt practice charged against the respondent no.1 should be a full and complete statement of material facts to clothe the petitioner with complete cause of action and to give an equal and full opportunity to the respondent no.1 to meet the case and to defend the charges. The case of L.R. Shivaramagowda (supra) was cited for the purpose of legal proposition that failure to plead material facts is fatal and cannot be rectified by amendment and that affidavit in Form 25 must disclose the source of information and must clearly state which allegation is based on personal knowledge and information received. These cases would be dealt with later.
79. The case of M. Karunanidhi (supra), Sahodrabai Rai (supra) and U.S. Sasidharan (supra) were cited to bring home the point that schedule and annexures form an integral part of an election petition. The case of G.M. Page No.# 50/52 Siddeshwar (supra) was cited to bring home the point that failure to identify the paragraph in the election petition containing material particulars is a substantial defect and that affidavit in Form 25 has to be in substantial compliance of the form and absence of both would entail dismissal of the election petition at the threshold. These cases would also be dealt with later.
80. In this case, as mentioned herein before, there appears to be at least one ground relating to suppression of educational qualification, on which the election petition can be tried. Therefore, assuming that the learned senior counsel for the respondent no. 1 is correct in projecting that other points has not been pleaded, in that case the respondent no. 1 would definitely take an appropriate defence when the election petition is tried. But as there is cause of action for one allegations, in the considered opinion of the Court, the election petition is not liable to be dismissed. Therefore, the case of Dhartipakar Madan Lal Agarwal (supra), Hardwari Lal (supra), Manohar Joshi (supra), and L.R. Shivaramagowda (supra), M. Karunanidhi (supra), Sahodrabai Rai (supra), U.S. Sasidharan (supra), G.M. Siddeshwar (supra) do not help the respondent no.1.
81. The case of Muniraju Gowda P.M. (supra) was also cited to supplement the submissions that pleading of material fact co-relatable to the grounds set out in Section 100(1) as required under Section 81 forms the bed- rock of an election petition. In this case, the petitioner has specifically pleaded about the suppression of educational qualification of having Diploma in Civil Engineering. In the considered opinion of the Court, the pleadings to that effect made in para 9(B), 23, 24 and 26 would constitute "grounds" within the meaning of Sections 81 and 100(1) of the Representation of the People Act, 1951. The reference to "grounds" under the said sections would not mean the Page No.# 51/52 "grounds" provided under the provisions of Order XLI, Rule 1(2) CPC and Order XLI, Rule 2 CPC. Therefore, the said case would also not help the respondent no.1.
82. The case of Ram Sukh (supra) was cited for the purpose of demonstrating that as the pleadings are silent regarding allegations of undue influence, it would be in violation of Section 83 of the Representation of the People Act, 1951. In this regard, the Court is of the considered opinion that in light of the ratio of the case of Krishnamoorthy (supra), once non-disclosure of educational qualification is established, it would amount to corrupt practice and therefore, in this case, the election petition cannot be dismissed at the threshold.
83. Similarly, the case of U.S. Sasidharan (supra) which was also cited to bring home the point that only when pleadings exist regarding material facts and material particulars that an election petition can be tried. In the said regard, as the election petition discloses material fact and material particulars relating to at least one facet of corrupt practice, i.e. suppression of educational qualification, the said case of U.S. Sasidharan (supra), Samant N. Balkrishna (supra) and F.A. Sapa (supra) would not help the respondent no.1.
84. The case of Mahendra Pal (supra) was cited for the purpose of bringing home the point that material particulars are necessary to amplify or explain the material facts, for presenting a full picture of case of action. There is no disagreement with the said well settled legal position.
85. Therefore, in light of the discussions above, the Court is inclined to answer the three points of determination by holding as follows:-
Page No.# 52/52 a. In this case, the election petitioner has been able to prima facie show that in respect of the ground of suppression of educational qualification, the election petition is not lacking in material facts and particulars of corrupt practice of undue influence and accordingly, the election petition is not liable to be rejected under Order VII, Rule 11 CPC. The point of determination no. (a) is answered accordingly. b. In the same context, based on the manner in which the statement made in the election petition are verified in the verification, affidavit in support of the election petition and affidavit under Rule 94-A of the 1961 Rules, do not entitle the election petition to be rejected under Order VII, Rule 11 CPC.
c. In light of the discussions above, there is a cause of action for the election petition at least in the context of suppression of educational qualification.
86. Therefore, as there exists a cause of action at least on one ground, i.e. suppression of educational qualification relating to Diploma in Civil Engineering, the connected election petition is not liable to be rejected.
87. Thus, this interlocutory application stands dismissed.
JUDGE Comparing Assistant