Gauhati High Court
Page No.# 1/7 vs Moon Swarnakar on 2 June, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/70
GAHC010161522021
2025:GAU-AS:7136
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1609/2021
NIJAM UDDIN CHOUDHURY
S/O LATE ISHUB ALI CHOUDHURY RESIDENT OF VILLAGE
PANCHAGRAM, PS PANCHAGRAM, PO PANCHAGRAM, DIST HAILAKANDI,
ASSAM 788802
VERSUS
MOON SWARNAKAR
W/O ASHOK VERMA AND D/O LATE BIJOY BAHADUR SWARNAKAR,
RESIDENT OF VILLAGE VIDYANAGAR (CHUNATIGOOL CHA BAGAN) PO
BIDYANAGAR, PO RAMKRISHNA NAGAR, DIST KARIMGANJ, ASSAM
788734
Advocate for the Petitioner : MR K P PATHAK, MR B CHOUDHURY,MR H I CHOUDHURY
Advocate for the Respondent : MR P NAYAK, MS PADMINI BARUA,MR A CHALIHA
Linked Case : El.Pet./4/2021
MOON SWARNAKAR
W/O ASHOK VERMA AND D/O LATE BIJOY BAHADUR SWARNAKAR
RESIDENT OF VILLAGE VIDYANAGAR (CHUNATIGOOL CHA BAGAN) PO
BIDYANAGAR
PO RAMKRISHNA NAGAR
DIST KARIMGANJ
Page No.# 2/70
ASSAM 788734
VERSUS
NIJAM UDDIN CHOUDHURY
S/O LATE ISHUB ALI CHOUDHURY
RESIDENT OF VILLAGE PANCHAGRAM
PS PANCHAGRAM
PO PANCHAGRAM
DIST HAILAKANDI
ASSAM 788802
------------
Advocate for : MR P NAYAK
Advocate for : MR B CHOUDHURY appearing for NIJAM UDDIN CHOUDHURY
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Heading Paragraphs
Preliminaries 2 to 4
Prayer in connected election petition 5
Submission on behalf of applicant 6 to 14
Submission on behalf of respondent (election 15 to 20
petitioner)
Discussion and decision 21 to 123
Sub heading:
Relevant provision of RP Act 22
On the scope and ambit of the provisions of Order 23
VII Rule 11 CPC
Four points on which the election of the applicant has 24 to 43
been challenged in the connected election petition
On allegations that the applicant has disclosed only 46 to 60
one FIR and not the other three FIRs
On allegations of failure of the applicant and his wife 61 to 74
to disclose immovable and movable properties
On the allegations of non-disclosure of investment 75 to 86
Page No.# 3/70
make in land and/or immovable property
On non-disclosure of contractual details 87 to 94
On mismatch of name in the affidavit and name as 95 to 104
spelt in applicant's signature
Advocates for applicant Sri K.P. Pathak,
Senior Advocate,
Sri I. Kalita,
Advocate
Advocates for the respondent (election petitioner: Sri D. Saikia,
Senior Advocate,
Sri P. Nayak.
Ms. P. Baruah,
Advocate
Date of hearing: 09.05.2024,
04.06.2024,
01.10.2024,
29.10.2024,
12.11.2024,
20.05.2025,
27.05.2025
Date of order 02.06.2025.
ORDER
(CAV) Heard Mr. K.P. Pathak, learned senior counsel for the applicant. Apart from hearing Mr. D. Saikia, learned senior counsel, assisted by Mr. P. Nayak, learned counsel for the respondent, also heard Mr. P. Nayak, learned counsel for the respondent.
Preliminaries:
2) The applicant in this interlocutory application is the returned candidate to the Assam Legislative Constituency from the No. 8 Algapur Legislative Assembly Constituency (hereinafter referred to as "No. 8 Algapur LAC" for short). In the election petition, the applicant is the respondent.
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3) The respondent in this interlocutory application, who had lost the said election to the applicant, has filed the connected election petition to challenge the applicant's election.
4) During the pendency of the election petition, the applicant, i.e. the returned candidate, by filing this petition under Order VII, Rule 11 of the Code of Civil Procedure read with section 86 of the Representation of the People Act, 1951 (hereinafter referred to as RP Act for short), has prayed for rejection of the said election petition.
Prayer in the election petition:
5) In the election petition, the respondent has prayed, inter alia, for a declaration that the election of the applicant from No.8 Algapur LAC is void and struck down as per the mandate of section 98(b), 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the RP Act; and to record a suitable finding against the applicant under section 88 of the RP Act.
Submissions, in brief, by the learned counsel for the applicant:
6) At the outset, the learned senior counsel for the applicant has referred to various relevant provisions of the RP Act. Thereafter, by referring to the statements made in the election petition as well as this petition, it was submitted that based on four allegations, the respondent has claimed that the applicant has committed (a) corrupt practice of undue influence, which is covered by the provisions of section 100(1)(b) of the RP Act; (b) improper acceptance of nomination paper of the applicant, which has materially affected the election result, which is covered by section 100(1)(d)(i) of the RP Act.
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7) According to him, the four allegations are (a) the applicant has disclosed only one First Information Report (FIR for short)against him in Clauses 5(1)(a) and 5(1)(b) of his affidavit, but the applicant did not disclose regarding other 3 (three) FIRs; (b) the applicant has failed to disclose his and his wife's movable and immovable properties; (c) the applicant had not disclosed about his and his wife's contract with a public sector undertaking, namely, Hindustan Paper Corporation Limited; and (d) the applicant has signed as Nizam Uddin Choudhury, whereas his name as disclosed in his affidavit is Nijam Uddin Choudhury.
8) It would be pertinent to mention that very painstakingly, the learned senior counsel for the applicant has referred to the legal history behind the requirement of an election candidate to disclose additional information in the nomination paper. The submissions on the history of development of electoral reforms is summarised as under:
a. By citing the case of Union of India v. Association of Democratic Reforms, (2002) 5 SCC 294, it was submitted that in the said case, the information that was directed to be obtained by the Election Commission of India were (i) whether the candidate has been convicted, acquitted or discharged of any criminal offence in the past, and sentence, if any; (b) prior to six months of filing of nomination, whether the candidate is accused in any pending case in respect of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law, if so details thereof; (3) assets of the candidate, spouse and dependents, viz., immovable, movable and bank balance; (4) liabilities, if any, Page No.# 6/70 particularly due to any public financial institution or government dues.
b. It was submitted that this led to amendment of the RP Act and insertion of the provisions of section 33A and 33B.
c. It was submitted that later on, the provisions of section 33B of RP Act was struck down in the case of Peoples Union of Civil Liberties v. Union of India, (2003) 4 SCC 399.
d. Thereafter, it was held in the case of Resurgence India v. Election Commission of India, (2014) 14 SCC 189, that a candidate cannot keep the columns of the affidavit blank.
e. Thereafter, in the case of Kishan Shankar Katore v. Arun Dattatray Sawant & Ors., (2014) 14 SCC 162, it was held that non-disclosure of disputed government dues is not a material lapse warranting rejection of a nomination paper.
f. In the case of Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467, in answering the issue as to whether non-disclosure of particulars of criminal cases pending against a candidate amounts to corrupt practice of undue influence, it was held that if something was within the special knowledge of the candidate, and not disclosed, would tantamount to fraud. Accordingly, it was held that there would be an additional requirement for a candidate to disclose pending criminal case in which either charge has been framed or cognizance has been taken by the court. It was also held that non-disclosure of criminal antecedents constitutes corrupt practice of undue influence.
Page No.# 7/70 g. By referring to the case of Mairembam Prithviraj v. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487, it was submitted that if at the time of scrutiny, the Returning Officer directs a candidate to produce his educational qualification certificate for verification of nomination paper, and if the candidate fails to do so, it would amount to substantial defect constituting improper acceptance of nomination paper. It was submitted that it was not held that it would amount to corrupt practice of undue influence.
h. It was submitted that in the case of Lok Prahari v. Union of India, (2018) 4 SCC 699, it was held that non-disclosure of assets and source of income as a corrupt practice of undue influence.
i. Then, in the case of Public Interest Foundation v. Union of India, (2019) 3 SCC 224, it was held that each candidate is required to fill up particulars of pending criminal cases in bold letters.
9) The learned senior counsel for the petitioner has submitted that in respect of the four allegations on the basis of which the respondent has filed the election petition to challenge the applicant's election, the respondent has not disclosed and/or pleaded material facts as to how, in what manner, on whom and where this alleged corrupt practice of undue influence has been committed by the applicant. Similarly, it has been submitted that in respect of all the four allegations against the applicant, the respondent has not pleaded necessary material facts and material which would give rise to triable issue.
10) Moreover, it was submitted that as per the affidavit under Form 25, which has been filed to support the allegation of corrupt practice of undue Page No.# 8/70 influence, has not been properly verified so as to show what is the case of the respondent because of lack of clarity as to which part of the relevant paragraphs of the election petition are material facts and which part of the statements by the respondent are material particular. It has been submitted that unless the affidavit contains clarity as to how the statements are verified, it would be difficult for the applicant to make an effective response.
11) It has been submitted that as the allegations of corrupt practice of undue influence is quasi-criminal in nature, it is the burden of the respondent to make all disclosure in the election petition beyond reasonable doubt and it is not permissible for the respondent to lead evidence without specific pleading.
12) In respect of lack of material facts and lack of particulars of corrupt practice of undue influence, the learned Senior Counsel for the applicant has referred to statements made in paragraphs nos.1, 6, 7, 8, 12, 13, 14-D, 14-
E, 14-F and 15 of the Election Petition and by citing the cases already referred hereinbefore, it has been submitted that failure or omission to plead one material fact in a series of material facts constituting corrupt practice is fatal to an election petition as incomplete pleadings does not give rise to a cause of action with triable issue. It has been submitted that allegations of corrupt practice is quasi-criminal in nature and therefore, the burden is upon the respondent to state and/or plead material facts beyond reasonable doubt. Moreover, it is submitted that in the absence of pleadings, it is not for the Court to embark upon fishing and roving enquiry. It has also been submitted that the respondent has sworn statements made in paragraphs nos. 14-A to 14-F as particulars of alleged corrupt practice of undue influence , but no particulars have been attached to those paragraphs. Accordingly, it has been further Page No.# 9/70 submitted that in the absence of particulars of alleged corrupt practice of undue influence, the Election Petition is in violation of the requirement of Section 83 Representation of the People Act, 1951 as well as Rule 4 of Order 6 of CPC.
13) On how the statements made in the Election Petition are barred by law, the learned Senior Counsel for the applicant has submitted that there is non-disclosure of grounds on which the Election Petition has been presented. Accordingly, it is submitted that the Election Petition is in violation of the mandatory requirement of Section 81(1) of the Representation of the People Act, 1951, the election petition is liable to be dismissed in limine.
14) In support of his submissions, the learned senior counsel for the applicant has cited the following cases, viz., (1) Association of Democratic Reforms (supra) SCC 294, (2) Peoples Union of Civil Liberties (supra) (3) Resurgence India (supra) (4) Kishan Shankar Katore (supra) (5) Krishnamoorthy (supra) (6) Mairembam Prithviraj (supra), Lok Prahari (supra), (7) Public Interest Foundation (supra) (8) Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169, (9) Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214, (10) Bachhaj Nahar v. Nilima Mandal & Anr., (2008) 17 SCC 491 , (11) Biraji @ Brijraji & Anr. V. Surya Pratap & Ors., (2020) 10 SCC 729 , (12) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1997 (Supp) SCC 93, (13) Azhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC 315, (14) F.A. Sappa & Ors. V. Singora & Ors., (1991) 3 SCC 375 , (15) Bansilal v. Manoharlal, 1958 SCC Online Raj 181 , (16) Mopuragundu Thippeswamy v. K. Eranna, 2018 SCC Online Hyd 413 , (17) Samar Singh v. Kedarnath @ K.N. Singh & Ors., 1987 (Supp) SCC 663 , (18) D. Venkata Reddy v. R. Sultan & Ors., (1976) 2 SCC 455 , (19) Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541, (20) Samant Balkrishna & Anr. v. George Fernandez & Ors., (1969) Page No.# 10/70 3 SCC 238, and (21) Muniraju Gowda P.M. v. Muni Rathna & Ors., (2020) 10 SCC 192, (22) Kariko Kri V. Nuney Tayang & Anr., 2024 INSC 289, reported in (2024) 0 Supreme (SC) 325.
Submissions, in brief, by the learned counsel for the respondent (election petitioner):
15) Per contra, the learned counsel for the petitioner has submitted that this application for rejection of election petition is misconceived and is a dilatory step to delay the trial and hearing of the election petition.
16) It has been submitted that it is a well settled legal proposition that while considering an application under Order VII Rule 11 CPC, in this case, the Court would have to only examine the election petition. It is further submitted that whether the election petition is barred by any law must be construed and considered on the basis of statement made in the election petition and not on the basis of any material, which is produced by the other side. Accordingly, it is submitted that the averments made in this application cannot be looked into for considering the prayer for rejection of election petition. In the said context, it was further submitted that while scrutinizing the statements made in the election petition, it is the duty of this Court to examine the materials for ascertaining the cause of action and moreover, cause of action does not comprise evidence necessity to prove the facts. However, it is for the respondent to prove the necessary facts so as to have the election of the applicant set aside. It is further submitted that in the pleadings, the only requirement is to state materials facts, but not the evidence.
17) It has further been submitted that in this case, one of the Page No.# 11/70 allegations of the respondent in the election petition is regarding improper acceptance of nomination of the applicant. Therefore, there is no requirement or necessity to prove that the election has been materially affected as because had the nomination paper of the applicant not been accepted, he could not have contested the election. Hence, it is submitted that in such a situation, neither the name of the applicant would have found entry in the ballot paper, had his nomination been rejected at the initial stage. Therefore, the very fact that the nomination was inappropriately accepted and the name of the applicant was entered in ballot paper would itself suffice to hold that the election has been materially affected.
18) It was also submitted that in order to decide as to whether the election petition discloses a cause of action, the Court must take into consideration the entire election petition as a whole. It was submitted that based on the verification made in the affidavit filed in support of the election petition or in respect of an affidavit filed under Form-25, it is not permissible to compartmentalise or dissect the pleadings, part by part, for examining as to whether the election petition discloses a cause of action. It is also submitted that just because corrupt practice has to be strictly proved, it would not mean that a pleading in an election petition also has to be strictly construed, beyond reasonable doubt as submitted by the learned senior counsel for the applicant.
19) It is further submitted that the defect, if any, in the verification of an election petition or the affidavit accompanying the election petition, is a curable defect and therefore, such a curable defect is no ground to reject an election petition under Order VII Rule 11 CPC. Moreover, it has been submitted that the discrepancies, if any, in the affidavit(s) and/or verification(s) are curable Page No.# 12/70 defects and the respondent would be entitled to cure such defect either by way of an application by the respondent or as and when pointed out by the Court. It is further submitted that the requirement to file an affidavit under the Proviso to section 83(1)(c) is not mandatory. It is lastly submitted that it is a tried law that an election petition should not be rejected at the very threshold where there is sufficient compliance.
20) The learned counsel for the respondent, in support of his submissions has cited the following cases: (1) Sajjan Sikaria & Ors. v.
Shakuntala Devi Mishra & Ors., (2005) 13 SCC 687, (2) Srihari Hanumandas Totala v. Hemant Vithal Kamat & Ors., (2021) 9 SCC 99 , (3) Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Education Trust, (2012) 8 SCC 706, (4) Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366, (5) Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, (6) Edelco Housing and Industries Ltd. v. Ashok Vidyarthi & Ors., 2023 SCC OnLine SC 1612 , (7) Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy, (2018) 14 SCC 1, (8) Ponnala Lakshmiah v. Kommuri Pratap Reddy & Ors., (2012) 7 SCC 788 , (9) Kimneo Haokip Hangshing v. Kenn Raikhan & Ors., 2024 SCC OnLine SC 2548 , and (10) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 SCC OnLine SC 509.
Discussions and decision:
21) Perused the election petition and considered the submissions from both sides and also considered the cases cited at the Bar by both sides.
Relevant provisions of the RP Act:
22) At the outset, it would be required to examine the relevant Page No.# 13/70 provisions of the RP Act for ready reference. Accordingly, the provisions of Sections 81, 83, 86, 100, and 123 of the RP Act are quoted below:-
81. Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
* * *
86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section
98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub- section (2) of Section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for Page No.# 14/70 ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
* * *
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 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;
(b) * * * (omitted)
(c) that the candidate and his election agent took all reasonable means for Page No.# 15/70 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 declare that the election of the returned candidate is null and 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 1[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.
* * *
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 2[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 Page No.# 16/70 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
(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 candidates 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 Page No.# 17/70 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 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 in the Page No.# 18/70 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 arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election. (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 Page No.# 19/70 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.
On the scope and ambit of the provisions of Order VII, Rule 11 CPC:
23) In order to impress upon the Court that while considering an application for rejection of plaint, only the averments made in the plaint can be looked into and to nothing else, the learned counsel for the respondent had cited the cases of (i) Sajjan Sikaria (supra), (ii) Srihari Hanumandas Totala (supra), (iii) Church of Christ Charitable Trust and Educational Charitable Society (supra), and (iv) Dahiben (supra). There is no quarrel with the said well-settled legal position. Therefore, in this judgment and order, no material other than the averments made in election petition has been considered.
Four points on which the election of the applicant has been challenged in the connected election petition:
24) This interlocutory application has been filed by the applicant for rejection of the connected election petition filed by the respondent, who is the election petitioner.
25) There is no dispute at the Bar that four following points have been raised by the respondent in the election petition to assail the election of the applicant to the Assam Legislative Assembly from No. 8, Algapur LAC. They are:-
a. In his affidavit filed along with the nomination paper under Form-26, the applicant, who is the returned candidate from No.8 Page No.# 20/70 Algapur LAC, has disclosed only one FIR against him. However, the applicant did not disclose regarding other 3 (three) FIRs. b. In the said affidavit under Form-26, the applicant had failed to disclose all his and his wife's movable and immovable properties. c. In the said affidavit under Form-26, the applicant had not disclosed about his and his wife's contract with a public sector undertaking, namely, Hindustan Paper Corporation. d. In the said affidavit under Form-26, the applicant has signed as Nizam Uddin Choudhury, whereas his name as disclosed in his affidavit is Nijam Uddin Choudhury.
26) In respect of all the four points raised by the respondent in the election petition, the learned senior counsel for the applicant has raised four objections and it was submitted that in the election petition:
a. The pleadings of the respondent lack disclosure of material facts.
b. There was lack of pleadings in respect of disclosure of corrupt practice of undue influence.
c. The election petition was not maintainable as the
statements are barred by law.
d. The election petition did not contain grounds on which the
election petition was filed.
27) The said objections are opposed by the learned counsel for the
respondent as not sustainable on facts and in law. Therefore, it is required to be examined as to whether the objection raised by the applicant is sustainable.
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28) It is seen that in the case of Azhar Hussain (supra), the Supreme Court of India had examined the expressions material facts and material particulars. The said two expressions would be referred to in several places in this judgment and order. The said relevant paragraph nos. 14 and 18 thereof are quoted below:
14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression "material facts and particulars", which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act.
"(1) What are material facts and particulars? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition [Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi, (1969) 1 SCC 372: AIR 1969 SC 734: (1969) 3 SCR 217].
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded [Hardwari Lal (supra)]:
(a) mode of assistance;
(b) measure of assistance; and
(c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of government servants in election it is absolutely essential to plead the following:
(a) kind or form of assistance obtained or procured;
(b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election candidate for promoting the prospects of his election [Hardwari Lal (supra)].
Page No.# 22/70 (4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured [Hardwari Lal (supra)].
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered [Hardwari Lal (supra)].
(6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars [Hardwari Lal (supra)]."
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18. The averments contained in para 4 pertaining to Ground I do not satisfy the test prescribed in Manubhai Amorsey v. Popatlal Manilal Joshi and Hardwari Lal v. Kanwal Singh. The most important test which remained unsatisfied is as regards the omission to satisfy in what manner the assistance was obtained and procured by the election candidate for promoting the prospects of his election. All that has been stated is:
"His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election..."
It is not mentioned as to who procured or obtained the services of Shri Beg, in what manner he obtained the services and what were the facts which went to show that it was with the consent of the respondent. Unless these "essential facts"
which would clothe the petition with a cause of action and which will call for an answer from the returned candidate are pleaded as per the law laid down in Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi it cannot be said that the petition discloses a cause of action in regard to this charge. In the absence of these material facts and particulars court could not have rendered a verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition. It is not sufficient to show that a government servant had appeared on the public media to praise one of the candidates. It must also be shown that the assistance of the government servant was obtained either by the respondent or his agent or by any other person with the consent of the election candidate or his election agent. The averments made in the petition do not show (i) who had obtained or procured the assistance of Shri Beg; (ii) how he had obtained or procured the assistance of Shri Beg; and (iii) how it was said that it Page No.# 23/70 was with the consent of the respondent or his election agent. Nor is it shown which, if any, facts went to show that it was in furtherance of the prospects of the respondent's election. In the absence of material facts and particulars in regard to these aspects, the petition would not disclose the cause of action. The High Court was therefore, perfectly justified in reaching this conclusion. The petition also does not disclose the exact words used in the speech; or the time and date of making such a speech. Now, unless the relevant or offending passage from the speech is quoted, it cannot be said what exactly Shri Beg had said, and in what context, and whether it was calculated to promote the election prospects of the respondent. Be that as it may, inasmuch as these material facts and particulars to show that the services of Shri Beg were procured by someone with the consent of the respondent or his election agent are not there, the averments pertaining to the charge do not disclose a cause of action. Unless the nexus between the appearance of Shri Beg on the media and the prior consent of the respondent or his election agent in regard to what he was going to say and the purposes for which he was going to say is set out in the material particulars it cannot be said that it disclosed a cause of action and the test laid down in Manubhai Nandlal case as also Hardwari Lal case is satisfied. The High Court was therefore justified in taking the view that it has taken. We may, in passing, mention a point made by learned counsel for the respondent. It was submitted that the averment must also mention whether the interview was a live one telecast after the date of filing of the nomination. If it was one recorded prior to the said date it may not be of any consequence. This argument also requires consideration but we do not propose to rest our conclusion on this aspect as it is not necessary to do so.
29) From the above, it is seen that the Supreme Court of India had laid down that the election petitioner (respondent in this case) was required to plead statement of materials facts as to (i) who, (ii) how, (iii) in what manner,
(iv) on whom, (v) when, and (vi) in which places, the alleged corrupt practice of undue influence has been committed. Further, it is also required that the statement of material facts has to be supported with material and particulars in the election petition. Thus, any failure on part of the election petitioner (respondent in this case) to plead one material fact in a series of material facts constituting allegation of corrupt practice is fatal to the whole pleading insofar Page No.# 24/70 as it relates to existence of a cause of action with a triable issue.
30) It would also relevant to quote hereinbelow paragraph 4 of the case of D. Venkata Reddy (supra):
4. Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt.
Where the election petitioner seeks to prove charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the Court would have to approach the evidence with great care and caution, scrutiny and circumspection, and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so creditworthy and true, spotless and blemishless, cogent and consistent, that no corroboration to lend further assurance is necessary. It has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the election set aside by means fair or foul and the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which should be acted upon only if the Court is satisfied that the evidence is true and does not suffer from any infirmity. Where, however, the evidence led by the election petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies, the Court may refuse to accept such evidence, because consistency alone is not the conclusive test of truth. Judicial experience shows that sometimes even a tutored or parrot- like evidence can be consistent and free from discrepancies and yet not worthy of credence. It is, however, difficult to lay down a rule of universal application because each case will have to be decided on its own facts, but in appreciating the evidence the broad features mentioned above must be borne in mind and have been emphasised by this Court in a large catena of decisions -- a few of them may be referred to here.
31) It would also relevant to quote paragraph of 17 and 18 of the case of Ram Sukh (supra).
17. Now, before examining the rival submissions in the light of the afore- stated legal position, it would be expedient to deal with another submission of the learned counsel for the appellant that the High Court should not have exercised its power either under Order 6 Rule 16 or Order 7 Rule 11 of the Code to reject the election petition at the threshold. The argument is twofold viz.:
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(i) that even if the election petition was liable to be dismissed ultimately, it should have been dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition, and
(ii) since Section 83 does not find a place in Section 86 of the Act, rejection of the petition at the threshold would amount to reading into sub-section (1) of Section 86 an additional ground.
In our opinion, both the contentions are misconceived and untenable.
* * *
18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail.
32) It is also relevant to quote paragraph nos. 29, 35 and 37 of the case of Samant N. Balkrishna (supra).
29. Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the Peoples Act. Here we have to consider Sections 81, 83 and 84 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section
101. That as we have shown above creates the substantive right. Section 83 then provides that the election-petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word "material" shows that the facts necessary Page No.# 26/70 to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficiency of the words "material facts" will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be co-related to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Section 86 although the penalty of dismissal is taken away. Sub-section (5) of that section provides:
"(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition." One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be Page No.# 27/70 permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contract in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is, however, a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law there are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action.
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35. In that case the material allegation was that the appellants "could in the furtherance of their election enlist the support of certain government servants" and that the Appellant 1 had employed two persons in excess of the prescribed number for his election purposes. No list of corrupt practices was attached. Thereafter names were sought to be added. The amendment was allowed by the Tribunal after the period of limitation and the addition was treated as mere particulars. It was held by this Court that an election petition must specify "grounds or charges"
and if that was done then the particulars of the grounds or charges could be amended and new instances given but no new ground or charge could be added after the period of limitation. The reason given was that the amendment "introducing a new charge" altered the character of the petition. Venkataraman Iyyar, J., emphasised over and over again that new instances could be given provided they related to a "charge" contained in the petition. The result of the discussion in the case was summarised by the learned Judge at p. 392 as follows:
"(1) Under Section 83(3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given.
(2) The tribunal has power under Order VI Rule 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred."
What is meant by "ground or charge" was not stated. By "ground" may be meant the kind of corrupt practice which the petitioner alleges but the word "charge" means inclusion of some material facts to make out the ground. Applying the same test (although without stating it) the learned Judge pointed out that the charge made in the petition was that the appellants "could" in furtherance of their election Page No.# 28/70 enlist the support of certain government servants and it meant only an ability to enlist support but the "charge" which was sought to be levelled against the candidate later was that he had in fact enlisted the said support. The learned Judge observed at p. 393 as follows:
"the charge which the respondent sought to level against the appellants was that they moved in public so closely with high dignitaries as to create in the minds of the voters the impression that they were favoured by them. We are unable to read into the allegations in para 7(c) as originally framed any clear and categorical statement of a charge under Section 123(8), or indeed under any of the provisions of the Election Law".
The allegation in the statement was described as worthless and further it was observed: at p. 395 as follows:
"But even if we are to read 'could' in para 7(c) as meaning 'did', it is difficult to extract out of it a charge under Section 123(8). The allegation is not clear whether the Government servants were asked by the appellants to support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is no allegation at all that the Government servants did in fact, assist the appellants in the election. On these allegations, it is difficult to hold that the petition in fact raised a charge under Section 123(8). It is a long jump from the petition as originally laid to the present amendment, wherein for the first time it is asserted that certain Mukhias (no Mukhias are mentioned in the petition) assisted the appellants in furtherance of their election prospects, and that thereby the corrupt practice mentioned in Section 123(8) had been committed. The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was not within the power of the Tribunal to allow an amendment of that kind."
It would appear from this that to make out a complete charge the facts necessary must be included in relation to a "ground" as stated in the Act. Merely repeating the words of the statute is not sufficient. The petitioner must specify the ground i.e. to say the nature of the corrupt practice and the facts necessary to make out a charge. Although it has been said that the charge of corrupt practice is in the nature of quasi criminal charge, the trial of an election petition follows the procedure for the trial of a civil suit. The charge which is included in the petition must, therefore, specify the material facts of which the truth must be established. This is how the case was understood in numerous other cases, some of which we have already referred. In particular see J. Devaiab v. Nagappa, 1965 Mys 102; Babulal Sharma v. Brijnarain Brajesh, 1958 Madh Pra 176 FB.
37. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of corrupt practice which was perpetrated together with material facts on which a charge can be made out must be stated. It is obvious that merely repeating the words of the statute does not amount to a proper statement of facts and the section requires that material facts of corrupt practices must be stated. If the material facts of the corrupt practice are stated more or better particulars of Page No.# 29/70 the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition.
33) It is also relevant to quote paragraph nos. 14 and 15 of the case of Muniraju Gowda P.M. (supra):
14. As observed by the High Court, pleadings necessary for the High Court to form an opinion in terms of clause (a) or clause (b) of Section 101 of the Act were not there in the election petition. Under Section 83(1)(a) of the Act, an election petition should contain a concise statement of material facts. What constitutes "material facts" would depend upon the ground on which the election of a returned candidate is challenged. Several grounds are enumerated in Section 100(1) of the Act and pleading of material facts co-relatable to the grounds set out in Section 100(1), forms the bedrock of an election petition.
15. In the election petition, as it was originally filed, there was no averment of material facts traceable to the ingredients incorporated in clauses (a) and (b) of Section 101. This is why the first respondent herein made the first strike by moving an application in IA No. 4 of 2019 for striking out Prayer (c). Actually, IA No. 4 of 2019 was filed by the first respondent herein on 11-10-2019, pointing out that there are no necessary pleadings with reference to Section 101.
34) In support of the submissions that from the statements made in the election petition are barred by law, the first point raised was that the election petitions in this case does not specifically contain and/ or identify the grounds on which the election petition has been presented before the Court. In this regard, the learned senior counsel for the applicant has referred to Section 81, 83 and 86 of the RP Act and it was stated that it was a mandatory requirement for Section 81(1) to present an election petition on one or more ground specified in sub-section 1 of Section 100 or Section 100(1) and it has been mandated under sub-Section 1 of Section 86 that an election petition does not comply with the requirement of Section 81 which required to be dismissed by the High Court. In support of the said submissions, reliance has been placed Page No.# 30/70 on the case of Samant N. Balkrishna (supra), Muniraju Gowda P.M. (supra).
35) Per contra, the learned counsel for the respondent has submitted that the plaint must be read as a whole and therefore, on a perusal of the entire election petition, it would be evident that the respondent had stated material facts on which the respondent had prayed to declare the election of the respondent as void, which are found relatable to the various ingredients of Section 100 of the RP Act. Therefore, it was submitted that merely because the ground of challenge of the election has not been made under a heading of "grounds", would not invite rejection of the election petition.
36) The learned senior counsel for the applicant has cited the case of Samant N. Balkrishna (supra) and Muniraju Gowda P.M. (supra) to bring home the point that unless "grounds" is specifically pleaded, it cannot be said that the election petition was presented on "grounds" innumerated in section 100(1) of the RP Act. The Court has carefully perused both the cases and we are unable to accept the contention that unless the election petition contains pleadings under the heading "grounds", there is defect in form of pleadings for which the election petition can be rejected. Rather, from both the decisions cited, it appears that the requirement of law is that there should be pleading of material facts co-relatable to the "grounds" set out in section 100(1) read with section 81 of the RP Act.
37) Before rendering any finding and/or decision on the points raised in this interlocutory application, amongst others, it must also be understood as to what amounts to (i) corrupt practice, and (ii) corrupt practice to undue influence.
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38) The first sub-section of Section 100 of the RP Act lays down the grounds for declaring an election to be void. These include corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election agent. The second sub-section lays down an additional condition which must be satisfied before the election can be declared to be void even though the corrupt practice is committed by an agent other than the election agent.
39) In the case of Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi, (1969) 3 SCR 217, charge in the election petition was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the Congress party candidate, they would become the objects of divine displeasure and spiritual censure. This was accepted to be an act of corrupt practice.
40) In paragraph 25 of the case of Samant N. Balkrishna (supra), referring to corrupt practices under Section 100 of the RP Act, it was held that there are many kinds of corrupt practices, defined in Section 123 of the Act and it was observed that corrupt practices are viewed separately according as to who commits them. One class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. The other class is the corrupt practice committed by an agent other than an election agent.
41) Having carefully gone through the averments made in the election petition, it is required to be examined whether the election petition sets out the requisite material facts that disclose a cause of action and gives rise to triable Page No.# 32/70 issues.
42) Moreover, taking note of the provisions of law and case laws as referred hereinabove, the Court would now proceed to examine the four allegations on which the respondent has prayed for declaring the election of the applicant as void so as to examine as to whether due to lack of pleadings regarding material facts and lack of particulars of corrupt practice of undue influence, which is projected by the applicant, any case is made out by the applicant for rejection of the election petition.
43) Thus, the only point of determination in this interlocutory application is whether the election petition is liable to be rejected.
44) Before examining the point of determination, it would be relevant to examine the four allegations on which the connected election petition is based, i.e. (i) disclosure of only one FIR by the applicant in the affidavit in Form-26; (ii) non-disclosure of all movable and immovable properties of the applicant and his wife in the affidavit in Form-26; (iii) non-disclosure of contract of the applicant and his wife with Hindustan Paper Corporation in the affidavit under Form-26, (iv) in the said affidavit under Form-26, the applicant has signed as Nizam Uddin Choudhury, whereas his name as disclosed in his affidavit is Nijam Uddin Choudhury.
On allegations that the applicant had disclosed only one FIR and not the other three FIRs in his affidavit:
45) In this regard, the respondent has stated in the election petition that on 15.03.2021, the date of scrutiny of the nomination papers, one Aftab Hussain Laskar and three other candidates, namely, Alim Uddin Laskar, Bulbul Page No.# 33/70 Alam Choudhury and Gulzar Ahmed Barbhuiya had filed separate applications before the Returning Officer of No.8, Algapur LAC, praying for rejection of nomination paper of the applicant, alleging that in his affidavit under Form-26 accompanying the nomination paper, the applicant had disclosed about only 1 (one) FIR and 1 (one) case against him, being Hailakandi P.S. Case No. 529/2018 and G.R. Case No. 1296/2018 under section 367 IPC, pending in the Court of Chief Judicial Magistrate, Hailakandi. It was alleged that the applicant had concealed information regarding 3 (three) other following FIRs, being:
a. Algapur P.S. Case No. 304/2018, under sections 294/ 325/379/34 IPC, registered on the basis of FIR, lodged on 20.11.2018, by one Khalil Uddin Laskar, where the applicant is accused no.4, which is registered as G.R. Case No. 1402/2018, pending before the Court of the Chief Judicial Magistrate, Hailakandi. It has been stated in paragraph 14(A) of the election petition that investigation of the said case is still going on. It was also stated that the applicant is very much aware of the pendency of the case.
b. Panchgram P.S. Case No. 90/2018, under sections 409/420/468 IPC, registered on the basis of order dated 04.09.2018, passed by the Court of Munsiff No.1-cum- Judicial Magistrate First Class, Hailakandi, in connection with C.R. Case No. 954/2018 ( Rokibul Hussain Choudhury v. Nizam Uddin Choudhury & 2 Ors .). It has been stated in paragraph 14(B) of the election petition that to the knowledge of the respondent, investigation of the said case is still going on. It was also stated that in spite of having knowledge of Page No.# 34/70 the case, the applicant has deliberately preferred not to mention the case in his election affidavit.
c. C.R. Case No. 161/2021 (Minnatullah Rahmani Barbhuiya v.
Nizam Uddin Choudhury), which was subsequently registered by the police as Algapur P.S. Case No. 70/2021 under sections 406/420/468 IPC on the basis of order dated 22.02.2021, passed by the Court of Munsiff No.1-cum- Judicial Magistrate First Class, Hailakandi. It has been stated in paragraph 14(C) of the election petition that investigation of the case is presently in progress. It was also stated that the applicant has failed to mention about this case in his election affidavit.
46) The statement regarding non-disclosure of three FIRs is made in paragraph nos. 7, 11, 12 (first sub-paragraph), 13, 14-A, 14-B and 14-C of the election petition. However, it is seen that in none of the said paragraphs the respondent has pleaded material facts that (a) the applicant is an accused in a pending case registered six months prior to filing of nomination; (b) the offences are punishable with imprisonment for two years or more; and (c) that in all those three cases, the charges have been framed or cognizance has been taken by the court of law.
47) In the case of Association of Democratic Reforms (supra) , cited by the learned senior counsel for the applicant, the Election Commission of India was directed to obtain following information, viz., (i) whether the candidate has been convicted, acquitted or discharged of any criminal offence in the past, and sentence, if any; (b) prior to six months of filing of nomination, whether the Page No.# 35/70 candidate is accused in any pending case in respect of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law, if so details thereof. Thereafter, the RP Act was amended and the provisions of section 33A and 33B was inserted. However, the provisions of section 33B of the RP Act was struck down in the case of Peoples Union of Civil Liberties (supra).
48) In paragraph 94.4 of the case of Krishnamoorthy (supra), the Supreme Court of India has held as follows:-
94.4. As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-
disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act.
49) Thus, as per the decision of the case of Association of Democratic Reforms (supra) and the case of Krishnamoorthy (supra), the material facts are necessary to constitute corrupt practice of undue influence owing to non- disclosure of criminal antecedents and/or pending criminal cases of a candidate are:
i. The FIR should have been lodged six months prior
to the filing of the nomination;
ii. The candidate must be an accused in a pending
case;
iii. Offence must be punishable with imprisonment for
two years or more; and
iv. In such cases, either charge has been framed or
cognizance has been taken by the court of law.
Page No.# 36/70
50) The relevant observations made by the Supreme Court of India in
the case of Association of Democratic Reforms (supra) are quoted below:-
48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past -- if any, whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
(5) The educational qualifications of the candidate.
49. It is to be stated that the Election Commission has from time to time issued instructions/orders to meet with the situation where the field is unoccupied by the legislation. Hence, the norms and modalities to carry out and give effect to the aforesaid directions should be drawn up properly by the Election Commission as early as possible and in any case within two months.
51) Thus, one of the essential ingredients for alleging that the applicant had not disclosed about pending criminal cases in the affidavit under Form-26, supporting the nomination paper is that either charge has been framed or cognizance has been taken by the court of law. The learned counsel for the respondent has not been able to show that the election petitioner contains any such statement.
52) Thus, it appears from the ratio laid in the hereinbefore referred case of Association of Democratic Reforms (supra) , and Krishnamoorthy (supra), that even if the applicant had been quizzed and/ or examined during police Page No.# 37/70 investigation, he would be deemed to become aware of the case pending against him only at the stage of framing of charge or taking of cognizance of the case.
53) Thus, in the considered opinion of the Court, only when those material facts are pleaded, then only it can be said that a cause of action for triable issues is made out in an election petition.
54) As per the statement made in paragraph 16 of the election petition, the non-disclosure of other three pending FIRs amounted to commission of corrupt practice.
55) Per contra, the learned counsel for the respondent had submitted that in the election petition, the respondent had categorically disclosed that four other candidates for the No.8 Algapur LAC had filed separate application for the Returning Officer regarding concealment of criminal record. However, despite objections raised, the Returning Officer had not considered the same. Therefore, this was a clear case of improper acceptance of nomination paper of the applicant by the Returning Officer. Accordingly, it was submitted that had the nomination paper of the applicant been rejected, he would not have been the candidate in the election. Therefore, there was no requirement to plead or prove that result of election has been materially affected. In this regard, the learned counsel for the respondent has referred to the case of Madiraju Venkata Ramana Raju (supra). The relevant paragraph of the said case is quoted below:-
53. In para 23 of the judgment in Mairembam Prithviraj v. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487, after analysing the exposition in Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45, the Court observed thus:
23. It is clear from the above judgment in Durai Muthuswami (supra) that there is a difference between the improper acceptance of a nomination of a Page No.# 38/70 returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the respondent to prove that result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the appellant's nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected."
56) Be that as it may, as it is already been held before that there is an admission that the applicant would be deemed to become aware that the criminal case pending against him only at this stage of "framing of charge" or "taking of cognizance of the case" the case of Madiraju Venkata Ramana Raju (supra) cannot be applied in the facts of this case.
57) Considering that as per the requirement of law as laid down in the case of Krishnamoorthy (supra) and Karim Uddin Barbhuiya (supra) as well as under section 33A of the RP Act, in the absence of material particulars, the contention of the learned counsel for the respondent cannot be accepted.
58) In the considered opinion of the Court, there is an admission by the respondent that investigation in three criminal cases were pending, which is a positive statement of the respondent and is referable to the date when the election petition was filed. Thus, the respondent has not pleaded that charges Page No.# 39/70 were framed in those three criminal cases and/ or cognizance was taken by the Court of law. Therefore, the statement made by the respondent that the applicant knew about the pendency of those cases, is held to be presumptive.
59) Resultantly, it is also held that the allegation by the respondent regarding non-disclosure of three FIRs in the affidavit of the applicant submitted in Form-26, in the absence of essential pleadings that charges were framed in those three criminal cases and/ or cognizance was taken by the Court of law, does not give rise for the cause of action for the election petition.
On allegations of failure of the applicant and his wife to disclose immovable and movable properties:
60) The learned senior counsel for the applicant has submitted that the allegations in this regard have been pleaded in paragraph nos. 11, 14-D and 14-E of the election petition. It was submitted that in paragraph 14-D, it has been stated that though in his declaration under Form-26, the applicant has disclosed that he owns four vehicles and that his wife owned vehicle, but he did not disclose the year of purchase and purchase amount, but the petitioner had only disclosed the total value of (i) his vehicles, and (ii) the vehicle of his wife.
61) Thus, in the election petition, the respondent has contended that non-disclosure of purchase value of vehicle and year of purchase constitutes defect of substantial character under section 36(4) of the RP Act. Accordingly, it was stated that this is a case of improper acceptance of nomination paper under section 100(1)(d)(i) of RP Act, materially affecting the result of election in respect of the applicant.
62) Accordingly, it has been contended by the learned counsel for the Page No.# 40/70 respondent that when improper acceptance of nomination paper is alleged in an election petition.
63) Per contra, the learned senior counsel for the applicant had contended that when improper acceptance of nomination paper is alleged, the respondent was required to plead material facts as to how the result of the election was materially affected in respect of the applicant. It was also submitted that the respondent has not pleaded material facts as to (i) how, and
(ii) in what manner, the non-disclosure of the year of purchase or purchase price of each vehicle and only the disclosure of registration number of the vehicle and its total value is a substantial defect in the nomination paper. It was further submitted that there was no pleading as to how and in what manner the election result was materially affected for aforesaid reason.
64) The procedure for acceptance of nomination paper is prescribed in section 36 of the RP Act. Under section 100(1)(d)(i) of the RP Act, one of the grounds for declaring election of the applicant is void by improper acceptance of nomination.
65) In paragraph 14-D of the election petition, the respondent has alleged that the candidate failed to furnish such information as sought for on the proforma given to him and the Returning Officer also failed to discharge his statutory duty/ power for holding proper scrutiny of nomination paper. It was also pleaded that no proper scrutiny of the nomination paper was done under section 36(2) of the RP Act which certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same. Also, in paragraph 24 of the election Page No.# 41/70 petition, it has been pleaded that the affidavit in Form-26 filed by the applicant suffers from defects of substantial character and moreover, in paragraph nos. 24 and 25, it was further pleaded that because of improper acceptance of nomination paper, the applicant was allowed to contest the election, which has materially affected the result of the election insofar as it concerns the returned candidate. However, in paragraph 16 of the election petition and in the affidavit filed under Form-25, appended to the election petition, the statement made in paragraph 14-D of the election petition is verified as a statement about the commission of corrupt practice of undue influence fact constituting corrupt practice of undue influence by dint of non-disclosure of full details of movable and immovable assets and making false statement.
66) Thus, more than one stand has been taken by the respondent as regards non-disclosure of individual value of vehicles owned by the applicant and regarding vehicle owned by the wife of the applicant.
67) Thus, if this was a case of improper acceptance of nomination paper, then it must be pleaded as to how it had affected the result of the election so far as it relates to the applicant, the returned candidate. This is the requirement of Section 100(1)(d) of the RP Act. Be that as it may, in paragraph 14-D of the election petition, the respondent.
68) It is observed from the contents of Form-26 of conduct of election rules that under clause no.7 serial no. (vi), that there is a requirement to give the details of make of motor vehicles, registration number, year of purchase and amount. However, in his affidavit under Form -26, the applicant has not given the year of purchase and amount. Rather, he has provided consolidated value of Page No.# 42/70 all vehicles owned by him. Similarly, in respect of the vehicle of his spouse, the affidavit does not contain the year of purchase or the purchase amount, but only the value of the vehicle.
69) It is also seen that in sub-paragraph of paragraph 12 of the election petition, the respondent has referred to clause no.7, serial no. (iv) of the affidavit of the applicant and it has been stated that the applicant had failed to declare the full details of the vehicle. However, in paragraph 14-D of the election petition, the respondent has referred to clause 7-A of Form -26 at serial no. (vi), stating that such details should also contain make, registration number, year of purchase and amount at which the vehicles are purchased. Thus, in the two paragraphs, i.e. paragraph nos. 12 and 14-D of the election petition, two different serial numbers of Clause-7 of the affidavit, being serial no. (iv) and (vi) have been referred to. This appears to be a typing and/or clerical error that has crept in the election petition because in the copy of affidavit under Form-26 that has been annexed to the election petition, the relevant serial number in respect of vehicle is (vi) of Clause-7.
70) In first sub-paragraph of paragraph 14-D, it is stated as follows-
"same is the case with the vehicle owned by the spouse of the respondent. She also mentioned about one endeavour car AS-11L-0786, Rs.2999000.00, without giving the details like year of purchase and the price of the vehicle." It is clarified herein that reference to respondent in the election petition would mean the applicant in this interlocutory application. However, the affidavit in Form-26 is not by the spouse of the applicant, but it is by the applicant alone. Thus, as per affidavit in Form -26, the fact remains that the reference to the car of spouse was made by the applicant and not by his wife.
Page No.# 43/70
71) It is not the pleaded case of the respondent in the election petition that the non-disclosure of the year of purchase and the purchase price of each vehicle of the applicant and a vehicle of his wife is a substantial defect in the nomination paper. Moreover, it is not the pleaded case of the respondent in the election petition that how and in what manner the acceptance of the nomination paper, accompanied by an affidavit in Form-26, which only discloses the registration number of the vehicle and the consolidated value of the vehicles of the applicant and the value of vehicle of applicant's wife, without any objection being raised during scrutiny, amounted to an improper acceptance of the nomination paper.
72) Thus, while improper acceptance of nomination paper is a ground to declare the election of the applicant that is covered by the provision of Section 100(1)(d)(i) of the RP Act, the commission of corrupt practice is a ground that is covered by the provision of Section 100(1)(b) of the RP Act.
Thus, two distinct and separate grounds under Section 100 of the RP Act, which would require different standard of proof and therefore, distinct pleadings of material facts appear to be required to cover both grounds, which are however absent.
73) However, in the election petition, the respondent has not pleaded as to (i) how, (ii) in what manner, or (iii) on whom the applicant had committed corrupt practice of undue influence, by not disclosing the year of purchase of vehicle and its purchase price but disclosing only the vehicle registration number with total value of the vehicles owned by him and vehicle owned by his wife.
On the allegation of non-disclosure of investment made in land and/ or Page No.# 44/70 immovable property:
74) As per the statement made in the election petition, the allegations regarding non-disclosure of full details of the immovable property/ assets in respect of the applicant has been made in paragraph nos. 11, 12, 14E, 16, 19, 26 (part), 28, 31, 32 and 34.In respect of the allegations against the applicant regarding failure to dispose the details regarding investment of land and/or immovable properties, it has been submitted by the learned senior counsel for the applicant that the pleadings in respect of the said allegations are made in paragraph 14-E of the election petition. It was submitted that the respondent has stated that at Clause 7-B of the applicant's affidavit in Form-26 relating to details of immovable assets, the applicant had failed to disclose details of investment in respect of non-agricultural land regarding investment, if any, on the land by way of development, construction, etc. It was stated that the applicant had mentioned Rs.00, meaning thereby that no investment was done either by the applicant or by his spouse, however, at serial (IV) of the same clause, the applicant had mentioned about building of about 2200 sq. feet located on that plot of land.
75) The learned senior counsel for the applicant has submitted that statement made in paragraph 14-E of the election petition is verified and sworn as commission of corrupt practice of undue influence , on account of non- disclosure of full details of movable and immovable assets in the affidavit in Form-25 accompanying the election petition. However, it is submitted that the respondent has failed to verify which part of paragraph 14-E is material facts and which part thereof is material particulars.
Page No.# 45/70
76) Thus, it is to be seen as to whether in paragraph 14-E or elsewhere in the election petition, in respect of the allegations of disclosure of details of immovable assets (non-agricultural land and investment on land by way of development, construction, etc., the respondent has disclosed all material facts and material particulars of corrupt practice of undue influence as claimed by the respondent.
77) In the said regard, it is seen that the respondent has not made a positive statement that the construction standing over the land was constructed by the applicant and/or his spouse. The learned senior counsel of the applicant had made an endeavour to impress upon the Court that the statement in the election petition relating to non-disclosure of details of immovable property, including development, construction, etc. over non-agricultural land, the allegations are presumptive and the allegations are made by the respondent on the hypothesis and/or presumption that the applicant had either purchased a vacant plot of land, upon which he or his wife (i.e. spouse) had invested money to construct 2200 sq. feet building.
78) It is reiterated that the allegations regarding non-disclosure of full details of the immovable property/ assets in respect of the applicant has been made in paragraph nos. 11, 12, 14E, 16, 19, 26 (part), 28, 31, 32 and 34 of the election petition. It has been stated in paragraph 11 of the election petition as follows:
11. That, the election of the Returned Candidate has been vitiated by commission of wide spread corrupt practice of non-disclosure of criminal antecedents and FIRs pending against him and, also, not fully declaring the details of immoveable and moveable assets, by the respondent/Returned Candidate in his Election Affidavit in Form-26, the material facts and particulars whereof are being furnished in the forthcoming paragraphs. Be it stated herein that the material facts Page No.# 46/70 of commission of corrupt practice of non-disclosure of pending FIRs and non-
declaration full details of the immoveable and moveable assets, in the election affidavit by the respondent/Returned Candidate furnished herein below along with necessary particulars, which are sufficient for arriving at a definite finding regarding commission of corrupt practice of non-disclosure of pending FIRs and non-disclosure of full details of immoveable and moveable assets by the Returned Candidate, thus entailing a declaration that the Election of the Returned Candidate is void on the grounds of commission of corrupt practice by the Returned Candidate.
79) In paragraph 12, it has been stated that in clause no. 17-B (ii), the applicant has suppressed the amount invested by him in developing and constructing the residential building on the plot of land mentioned at clause 7-B
(i). Again, in paragraph 14-E of the election petition it has been stated that in clause 7B (details of immovable assets) at sl. No. (ii) (non-agricultural land), the applicant has failed to disclose the detail regarding any investment on the land by way of development, construction, etc. It was stated that the applicant had mentioned Rs.00, meaning thereby that no investment was done either by the applicant or by his spouse. It has also been stated that however, at serial (iv) of the same clause, the applicant had mentioned about building of about 2200 sq. feet located on that plot of land. In paragraph 16, it has been pleaded that the material facts and particulars adduced hereinabove disclose a clear case of commission of corrupt practice of non-disclosure about immovable assets as provided under section 123(2) of the RP Act by the returned candidate with his full knowledge. In paragraph 19, it has been pleaded that whether non- disclosure of full details about immovable assets, as has been stipulated under section 33A and rules framed under the RP Act and various notification issued by the Election Commission would tantamount to corrupt practice and if so, how is it to be proven, that issue has been settled by the Supreme Court of India in Page No.# 47/70 various pronouncements and paragraph 83 and 91 of the case of Krishnamoorthy (supra) has been referred to.
80) In connection with the issue of non-disclosure of full details of immovable assets owned by the respondent, it has been pleaded in paragraph 26 of the election petition that the same is a corrupt practice committed by the applicant. In paragraph 28 of the election petition, it has been stated that on a cumulative reading of the statues, well settled principles of law and notifications issued by the Election Commission of India, makes it abundantly clear that it was mandatory for the applicant to disclose in clause 5(ii)(a) and (b) of Form- 26, amongst others, full details about his immovable assets and by now doing so the applicant has totally disregarded the direction issued by the Supreme Court of India and the Election Commission of India. In paragraph 29 of the election petition, it has been stated that the applicant had succeed in securing highest number of votes i.e. 66785 in the election held on 01.04.2021 from No.8 Algapur LAC by indulging in corrupt practice of suppressing about the details about immovable assets, amongst others, and thereby misleading the voters by unduly influencing them and it has also been pleaded that due to improper acceptance of nomination papers, the result of the election, insofar as it concerned the applicant, has been materially affected which is a ground for detaining the election of a returned candidate. In paragraph 31, 32 and 34, it has been stated that the validity of the election of the applicant is called in question on the ground that he had filed a false declaration suppressing details about the immovable assets and therefore, his nomination deserved to be rejection by the Returning Officer.
81) With regard to the non-disclosure of year of purchase and the Page No.# 48/70 amount on which the vehicles were purchased, in second sub-paragraph of paragraph 14D, the respondent has alleged that the Returning Officer also failed to discharge is statutory duty/ power of Returning Officer for holding proper scrutiny of nomination paper. Accordingly, it was stated that no proper scrutiny of the nomination paper was done under Section 36(2) of the RP Act, which rendered the nomination paper suffering from "defect or substantial character", it is not the case of the respondent that any objection was raised by any quarter when the process of scrutiny of nomination paper was being done by the Returning Officer.
82) In the considered opinion of the Court as the respondent has alleged commission of corrupt practice of non-disclosure of details of movable assets in terms of the ratio laid down in the case of Azhar Hussain (supra) (para 14 and 18), the applicant ought to have disclose how, in what manner and upon whom there was commission of corrupt practice by the applicants. It is also submitted that neither in paragraph no.14-E nor in the entire Election Petition, the respondent has pleaded any material facts as to how by what means, and on whom the allegation regarding corrupt practice of undue influence has been committed by the applicant. In the absence of such pleadings, there would be no pleadings of corrupt practice.
83) It would be relevant to refer to paragraph 26 of the case of Dhartipakar Madanlal Agarwal (supra), which is quoted below:-
26. Paragraph 53(1)(d) stated "the workers of Rajiv Gandhi with his consent on June 14, 1981 at about 2 p.m. tried to bring voters in truck for casting votes and dropped them back at their houses". The appellant noted the number of such truck which is mentioned in the paragraph. This truck had brought about 20-22 voters to the Junior High School Polling Centre of Amethi constituency and took them back without charging fare from them. The truck was used by Rajiv Gandhi Page No.# 49/70 and this amounted to corrupt practice. This paragraph contains substantially the same allegations as contained in paragraph 30 of the petition; it purports to convey that Rajiv Gandhi and with his consent his workers "tried to bring voters". In substance the allegation amounts to saying that Rajiv Gandhi and his workers made attempt to carry voters in a truck. He further alleged that they carried the voters; it appears that the appellant intended to lay charge of corrupt practice against Rajiv Gandhi under Section 123(5) of the Act for hiring or procuring of a truck for the use of same for free conveyance of electors to and from the polling station. The necessary particulars with regard to corrupt practice as contemplated by Section 123(5) are however, totally lacking. The petition does not contain any material facts with regard to hiring or procuring of the vehicle. Further there is no allegation as to when the vehicle was hired or procured, by whom, and at what place or that the said vehicle in furtherance of hiring or procuring was used for free conveyance of electors to and from polling station. The allegations made in paras 30 and sub-para (d) of para 53(1) merely show that some voters were brought to the polling station Amethi in a truck without charging any fare from them and the truck was used by the workers of Rajiv Gandhi. Does this make out a corrupt practice under Section 123(5)? Section 123(5) reads as under:
"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 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:..."
It would be noticed that hiring or procuring of a vehicle by a candidate or his agent or by any other person with his consent is the first essential ingredient of the corrupt practice, the second essential ingredient is that the hiring or procuring of the vehicle must be for conveyance of the voters to and from the polling station and the third necessary ingredient is that conveyance of electors is free from any charge. All the three ingredients must be pleaded to make out a case of corrupt practice under Section 123(5). If any of the three ingredients is not pleaded there would be no pleading of corrupt practice. In Jasbhai Chunibhai Patil v. Anverbeg A. Mirza, AIR 1969 SC 586: (1969) 2 SCR 9: 39 ELR 438, Hidayatullah, C.J. speaking for the Court analysed this section and observed:
"It will, therefore, appear that the section requires three things, (i) hiring or procuring of a vehicle; (ii) by a candidate or his agent etc. and (iii) for the free conveyance of an elector. It will be noticed that the section also speaks of the use but it speaks of the use of such vehicle which connects the two parts, namely, hiring or procuring of vehicle and the use. The requirement of the law therefore is that in addition to proving the hiring or procuring and the carriage of electors to and from any polling station, it should also be proved that the electors used the vehicle free of cost to themselves."
In Ch. Razik Ram v. Ch. J.S. Chouhan, (1975) 4 SCC 769: AIR 1975 SC 667, the Court considered the decision of this Court in Balwan Singh v. Lakshmi Narain, AIR Page No.# 50/70 1960 SC 770: (1960) 3 SCR 91: 22 ELR 273 and the effect of 1966 amendment and thereupon it held as under:
"On analysis, clause (5) of Section 123 falls into two parts. The requirements of the first part are: (i) the hiring or procuring whether on payment or otherwise, of any vehicle or vessel for the free conveyance of voters, (ii) such hiring or procuring must be by a candidate or his election agent or by any other person with the consent of a candidate or of his election agent. The second part envisages the "use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family, or his election agent) to or from any polling station".
The two parts are connected by the conjunction "or" which is capable of two constructions. In one sense, it is a particle coordinating the two parts of the clause and creating an alternative between them. In the other sense--which is akin to the sense of "and"--it can be construed as conjoining and combining the first part of the clause with the second. The latter construction appears to comport better with the aim and object of the amendment of 1966. In this connection, it is noteworthy that even before the amendment, this Court in Balwan Singh v. Lakshmi Narain (supra), held that in considering whether a corrupt practice described in Section 123(5) is committed, conveying of electors cannot be dissociated from the hiring of a vehicle.
Even if the word "or" is understood as a coordinating conjunction introducing alternatives, then also a petitioner in order to succeed on the ground of a corrupt practice under the second part of the clause, must prove, in addition to the use of the vehicle or vessel for the free conveyance of any elector to or from any polling station, the hiring or procuring of that vehicle or vessel. This is so because the word "such" in the phrase introduced by the 1966 amendment, expressly imports these elements of the first into the second part of the clause."
Same view was taken by this Court in Dadasaheb Dattatraya Pawar v. Pandurang Raoji Jagtap, (1978) 1 SCC 504: AIR 1978 SC 351: (1978) 2 SCR 524 and the Court emphasised that it was necessary for an election petitioner to prove (i) that any vehicle or vessel was hired or procured, whether on payment of otherwise, by the returned candidate or by his election agent or by any other person with the consent of the candidate or of his election agent; (ii) that it was used for the conveyance of the electors to or from any polling station and (iii) that such conveyance was free of cost to the electors. Failure to substantiate any one of these ingredients leads to the collapse of the whole charge. Standard of proof required to establish a corrupt practice is strict, as imputation of corrupt practices, is quasi-criminal and the charge of corrupt practice under Section 123(5) has to be scrutinised in a strict manner. In Dharmesh Prasad Verma v. Faiyazal Azam, (1984) 4 SCC 3: AIR 1984 SC 1516: (1985) 1 SCR 11, this Court again reaffirmed the aforesaid view. There is thus good authority for holding that if any of the three ingredients as noted earlier is not pleaded the charge of corrupt practice must fail. In the absence of any of the three ingredients being pleaded it would not be open to the election petitioner to adduce evidence to sustain the charge of corrupt Page No.# 51/70 practice as was held by this Court in Rajendra Singh Yadav v. Chandra Sen, (1979) 4 SCC 111: AIR 1979 SC 882.
84) In light of above, the Court is constrained to hold that in the election petition, as regards allegations of non-disclosure of investment made in land and/or immovable property, there is total absence of pleadings as regards how, in what manner and upon whom commission of corrupt practice was made by the applicant.
On non-disclosure of contractual details:
85) As regards the allegations of non-disclosure of contractual details of the applicant, the said allegations are made in paragraph nos.12 and14-F of the election petition.
86) In paragraph 14-F of the Election Petition, the respondent has alleged that clause 9-D of the affidavit in Form-25, the applicant was required to disclose full details of contract with appropriate Government, with public company or companies entered into by the candidate, spouse, dependents, HUFs or trust in which the candidate or spouse or dependents have interest or by a partnership firms in which candidate or spouse or dependents are partners or by private companies in which a candidate or spouse or dependents have share. In this regard, it was also pleaded that against serial nos. (A) to (F) of Clause 9-D of the affidavit, the applicant has declared "NIL", meaning thereby that the applicant or his spouse had never entered into any contract with any appropriate Govt or with any public company or companies.
87) In this regard, the learned senior counsel for the applicant had submitted that in the election petition, there is no pleading of material facts Page No.# 52/70 stating, inter alia, that the applicant or his wife has any subsisting contract with Hindustan Paper Corporation. It was submitted that the same was a very pertinent fact because Hindustan Paper Corporation had gone into liquidation 7 (seven) years prior to the date when this application was filed.
88) Per contra, the learned counsel for the respondent has referred to clause 7-A, serial no. (v), of the affidavit and it is submitted that the applicant had stated that a bill amounting to Rs.79,94,327/- (Rupees Seventy nine lakh ninety four thousand three hundred twenty seven only) was receivable by the applicant from Hindustan Paper Corporation. Accordingly, it has been submitted that the applicant is a contractor and supplier of Hindustan Paper Corporation, a Central Government Undertaking. Moreover, the learned counsel for the respondent had submitted that in this affidavit in Form-26, the applicant had also suppressed information of subsisting contract, if any, by the applicant or his spouse.
89) Moreover, it was submitted that the respondent had failed plead that the sum of Rs.79,94,327/- was receivable from Hindustan Paper Corporation in respect any subsisting contract.
90) As submitted by the learned senior counsel for the applicant, on a perusal of the statements made in the election petition, it is seen that in his affidavit inForm-25, the respondent has sworn the statements made in paragraph no.14-F to be both material facts as well as particulars of corrupt practice of undue influence. However, it is noticed that the respondent has failed to identify that which part of paragraph 14-F consists of material facts of the commission of corrupt practice of undue influence and which part of the said Page No.# 53/70 paragraph are material particulars. Moreover, neither in the election petition nor in paragraph nos.12 and 14-F, the respondent has pleaded any material facts as to how by what means, and on whom the allegation regarding corrupt practice of undue influence has been committed by the applicant.
91) On an examination of the contents of the affidavit in Form-26, it is seen that while in Clause 9-D of the said affidavit, the applicant has declared "NIL", but in serial no. (v) of clause 7-A thereof, the applicant has disclosed that a sum of Rs.79,94,327/- was receivable by him from Hindustan Paper Corporation. However, there is absence of any pleading as to what was the contract between the applicant and the Hindustan Paper Corporation or out of which contract an amount of Rs.79,94,327/- was receivable by the applicant from Hindustan Paper Corporation.
92) Thus, there is absence of pleadings regarding material facts and material particulars as regards corrupt practice of undue influence. Therefore, no cause of action with triable issue has been made out by the respondent in the Election Petition, for which we have already referred hereinbefore to the case of Azhar Hussain (supra).
On mismatch of name in the affidavit and name as spelt in applicant's signature:
93) In respect of the allegations that the applicant had signed in the election affidavit as "Nizam Uddin Choudhury" instead of "Nijam Uddin Choudhury", the pleadings are contained in paragraph 21 and 21-A of the election petition.
94) In paragraph 21 of the election petition, it has been pleaded that Page No.# 54/70 in the election affidavit, the applicant has signed as Nizam Uddin Choudhury, however, he filed his nomination as Nijam Uddin Choudhury. It was also stated that in the list of contesting candidates and in the ballot papers also the name of the applicant is written as Nijam Uddin Choudhury and in the Certificate of Election issued by the Returning Officer of No.8, Algapur LAC, the name of the returned candidate from No.8, Algapur LAC is written as Nijam Uddin Choudhury. It was also stated that most pertinently, the Returning Officer while accepting the nomination paper of the applicant, mentioned his name as Nizam Uddin Choudhury. It has also been stated that till date the applicant has not initiated any process for correction of his name in the Certificate of Election.
95) In the election petition, the respondent has alleged that actual name of the applicant is Nizam Uddin Choudhury. In paragraph 21 A of the election petition, it has been stated that the voters were not aware about the fact that Nizam Uddin Chowdhury and Nijam Uddin Choudhury are the names of the same person, might have voted for Nijam Uddin Choudhury thinking that they were voting for Nijam Uddin Choudhury and not for Nizam Uddin Choudhury. Thus, as per the respondent, because of such confusion even one vote has been cast in favour of Nijam Uddin Choudhury, which actually went to Nizam Uddin Choudhury, it would be sufficient to hold that the election of the applicant has been materially affected. Therefore, the respondent has alleged that it was a case of improper acceptance of nomination paper.
96) The learned senior counsel for the applicant has submitted that the respondent had failed to plead the material facts while raising the issue of improper acceptance of nomination paper. It has been submitted that it is not the pleaded case of the respondent in the election petition that the name of the Page No.# 55/70 applicant does not tally with his name appearing in the electoral roll. Moreover, there is no pleading as to whether the said point was first raised before the Returning Officer at the time of scrutiny of the nomination paper.
97) Moreover, it has been submitted that material facts has not been pleaded alleging that the applicant, whose name appears at serial no.781 in Part-10 of the voter list in No. 8 Algapur LAC, is not the same person signing the affidavit. Moreover, it has been also submitted that this is also not pleaded that at the time of scrutiny of the nomination paper, the respondent or any other candidate had challenged that the signature of the applicant, appearing in the nomination paper and the affidavit under Form-26, was not genuine. Moreover, it was submitted that in the cause title of the election petition, the respondent has disclosed the name of the applicant as Nijam Uddin Choudhury and on the contrary, in paragraph 21 of the election petition, the respondent has stated that the actual name of the returned candidate is Nizam Uddin Choudhury.
Accordingly, it has been submitted that the respondent is aware that Nijam Uddin Choudhury and Nizam Uddin Choudhury are two names of same person. It was further submitted that it is not the pleaded case of the respondent that they were two candidates in the election, one with the name Nijam Uddin Choudhury and another candidate with name Nizam Uddin Choudhury so as to give rise to any confusion amongst the voters.
98) Per contra, it was submitted by the learned counsel for the respondent that the two names appearing in the copy of the affidavit in Form- 26, accompanying the nomination paper, was a proof that this was a clear case of improper acceptance of nomination paper, which requires no other proof.
Page No.# 56/70
99) It is seen that under Rule 30(3) of the Conduct of Election Rules, 1961, it is provided that if two or more candidates there with the same name, they shall be distinguished by the addition of their occupation or residence or in some other manner in every ballot paper. Moreover, as per Section 38 of the Representation of the People Act, 1951 read with Rule 10(1) of the Conduct of Election Rules, 1961 a list of contesting candidates is required to be prepared in form 7-A which contains the names of the contesting candidates arranged in alphabetical order as well as their addresses as given in the nomination papers together with such other particulars as may be prescribed. As per Rule 31(1)(b) of the Conduct of Election Rules, 1951, it prescribed that a copy of the list of contesting candidates shall be displayed prominently outside each polling station. It is also not the pleaded case of the respondent in the election petition that all the ballot papers distributed within No. 8 Algapur LAC were printed only in English language and not in any other vernacular language of the State, for which even one voter could be misled.
100) In Section 33(4) of the RP Act, it is provided that on the presentation of the nomination paper, the Returning Officer is required to satisfy himself that the names and electoral roll numbers of the candidates as entered in the nomination paper are the same as those entered in the electoral roll. Thus, in light of the provisions of Section 36(4) and Section 33(4) of the RP Act it appears that once the nomination paper was accepted by the Returning Officer, the legislature never intended that any misnomer inaccurate description or clerical error, technical or printing error in the name of the candidate in the electoral roll would affect the electoral roll or the nomination paper. It is not in dispute that the Returning Officer is also empowered to direct such error to be Page No.# 57/70 corrected.
101) Though the respondent has alleged improper acceptance of nomination paper due to mistake in spelling of the name in the signature, but it is not pleaded as to how improper acceptance of nomination paper has materially affected the result of the election, as required under Section 100(1)
(d) of the RP Act.
102) Thus, once again, there is failure on part of the respondent to plead material facts and material particulars to support his stand.
103) In support of his submissions, on discrepancy in name, the learned senior counsel for the petitioner has placed reliance on the following cases, viz.,
(i) Bansilal (supra) (ii) Mopuragundu Thippeswamy (supra) (iii) Samar Singh (supra). Paragraph 10 to 14 of the case of Samar Singh (supra) are quoted below:-
10. When a nomination paper is presented to the Returning Officer he has to satisfy himself that the name and electoral roll number of the candidate and his proposer as mentioned in the nomination papers is the same as entered in the electoral roll and if he finds any discrepancy, the proviso empowers the Returning Officer to ignore and overlook any misnomer or inaccurate description, clerical, technical or printing error with regard to the name of the candidate or his proposer or with regard to place, mentioned in the electoral roll or in the nomination paper.
The Returning Officer is further empowered by the proviso to permit correction of any misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper. The proviso makes it amply clear that the Returning Officer is empowered to overlook any misdescription in the entries in the nomination paper and the electoral roll and he has power to grant permission for the correction of the relevant entries if the name of the candidate and his proposer as entered in the nomination paper differ from the entries in the electoral roll. But if the name and electoral roll of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll, and there is no variation or difference in the two documents in that event, the Returning Officer Page No.# 58/70 has no power to permit correction of any entry either in the electoral roll or in the nomination paper. There may be occasions when due to printing error the name of a candidate or his electoral roll number or place is wrongly described in the electoral roll, which may be different than those entered in the nomination paper, in such an event if the Returning Officer is satisfied that the corresponding entry in the electoral roll relates to the candidate or his proposer, he is authorised by the proviso to ignore the inaccuracy and to get the same corrected. But if there is no variation between the entries mentioned in the nomination paper and the electoral roll, there would be no occasion for the Returning Officer to exercise his power under the proviso to Section 33(4) of the Act.
11. In the instant case the appellant personally presented his nomination paper to the Returning Officer on November 27, 1984. The Returning Officer examined the same, and he found that the name and electoral roll number of the appellant and his proposer as entered in the nomination paper were the same as entered in the electoral roll. The Returning Officer's attention was not drawn to any inaccurate description or printing error with regard to the appellant's name and his proposer in the electoral roll. On the other hand, we find that the appellant had given a solemn declaration on oath under clause (d) of Form 2-A that his name and his father's name as mentioned in the nomination paper was correct. The appellant had enclosed a receipt showing that he had deposited a sum of Rs 500 as security deposit in accordance with Section 34, entries in that receipt also mentioned his name as "Samay Singh s/o S.P. Singh". The appellant had therefore himself represented to the Returning Officer that he was "Samay Singh s/o S.P. Singh" as mentioned in the electoral roll and the entries in the nomination paper were the same as those contained in the electoral roll. In these circumstances the Returning Officer had no authority in law to permit correction of any entry either in the electoral roll or in the nomination paper. The Returning Officer had rightly accepted the appellant's nomination paper and the appellant's grievance that the Returning Officer failed to exercise jurisdiction vested in him under the proviso to Section 34 [sic Section 33(4)] is misconceived.
12. On behalf of the appellant an application was made before the Returning Officer on November 1, 1984 for correction of the appellant's name in the list of validly nominated candidates which was rejected by the Returning Officer. Once nomination paper was accepted and on scrutiny it was found to be valid and the list of contesting candidates was prepared in accordance with Section 36, the Returning Officer had no jurisdiction to make any correction therein, as neither the Act nor the Rules confer any such power on him. The proviso to Section 33(4) is the only provision which authorises the Returning Officer to ignore any inaccurate description or printing error and empowers him to permit correction of entries in Page No.# 59/70 the nomination paper and electoral roll relating to a candidate or his proposer when the nomination paper is presented before him, or at the time of scrutiny only and that too in the circumstances specified in the proviso. He has no jurisdiction to make any correction after the scrutiny of nomination paper is over and the list of validly nominated candidates has been prepared and notified under Section 36(8) of the Act.
13. The appellant's contention that the result of the election was materially affected by improper acceptance of his nomination paper is misconceived. As discussed earlier the Returning Officer committed no illegality or irregularity in accepting the appellant's nomination paper; consequently, the appellant's nomination paper could not be held to have been accepted improperly. Once it is held that the appellant was properly nominated there could be no question of election being materially affected on account of any improper acceptance of appellant's nomination paper. Since this was the only ground of challenge raised in the election petition, the High Court rightly held that the petition did not disclose any cause of action.
14. The appellant's submission that if his correct name had been mentioned in the list of contesting candidates he would have fair chance of success at the election is totally misconceived. The appellant's name as declared by him was "Samay Singh s/o S.P. Singh" in accordance with the entry contained in the electoral roll, his nomination paper was validly accepted and he was allotted symbol of "Lion". If he was really serious to contest the election he could have done so and any discrepancy regarding his name in the ballot paper could not affect his chances at the election. It is a matter of common knowledge that the voters cast their vote not on the basis of name of the candidate but on the basis of symbol allotted to him. The appellant asserted that since his name was not corrected in the list of contesting candidates he did not carry on his election propaganda, and he lost interest in the election. This is quite strange logic. If the appellant was a serious candidate he could have carried on his election campaign and persuaded the voters to cast their vote for the symbol of "Lion" which admittedly related to him. The facts and circumstances available on record show that the petitioner was not serious in contesting the election.
104) Therefore, in light of the decision of the above noted case of Samar Singh (supra), the Court is inclined to take a view that as in the connected election petition, the respondent has not annexed a copy of the electoral roll of the applicant in English and/or in Assamese/ Bengali vernacular Page No.# 60/70 (in which it was locally published), the respondent has failed to disclose cogent and admissible document to prima facie demonstrate in the election petition that the name of the applicant, as contained in the nomination paper as well as in his affidavit in Form-26 did not match with the name as spelt in the concerned electoral roll so as to make out a prima facie case for improper acceptance of the nomination paper of the applicant. Moreover, the election petition does not contain any pleading or document to show that there was any candidate with name similar to the applicant. Therefore, the Court is constrained to hold that there is no cause of action and/or triable issue insofar as it relates to mismatch of name in the affidavit and name as spelt in applicant's signature.
105) As per the ratio laid down in the case of Karim Uddin Barbhuiya (supra), it has been held that the election petitioner was required to plead material facts as to how, in what manner, on whom and where this alleged corrupt practice of undue influence has been committed by the applicant. Before extracting the relevant paragraphs of the said case, it would be apposite to quote paragraph 24 and 24.1 of the case of Dahiben (supra), cited by the learned counsel for the respondent:-
24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
25. In Swamy Atman and v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51, this Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an 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"
Page No.# 61/70 (emphasis supplied)
106) Now the relevant paragraph nos. 19, 20, 21 and 24 of the case of Karim Uddin Barbhuiya (supra), are quoted below:-
20. So far as the allegations of "Corrupt practice" are concerned, the respondent no. 1 was required to make concise statement of material facts as to how the appellant had indulged into "Corrupt practice" of undue influence by directly or indirectly interfering or attempted to interfere with the free exercise of any electoral right. Mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of making a concise statement of the "material facts" in the Election Petition. The material facts which are primary and basic facts have to be pleaded in support of the case set up by the Election petitioner to show his cause of action. Any omission of a single material fact would lead to an incomplete cause 19 of action entitling the returned candidate to pray for dismissal of Election petition under Order VII Rule 11(a) of CPC read with Section 83(1)(a) of the RP Act. The said legal position has been well settled by this Court in Azhar Hussain (supra) wherein this Court after referring to the earlier pronouncements in Samant N. Balkrishna and Another (supra) and Shri Udhav Singh vs. Madhav Rao Scindia, (1977) 1 SCC 511 observed that the omission of a single material fact would lead to incomplete cause of action, and that an Election petition without the material facts is not an Election petition at all. It was further held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an Election petition can be and must be dismissed, if it suffers from any such vice.
21. It is also pertinent to note at this juncture that a charge of "Corrupt practice" is easy to level but difficult to prove because it is in the nature of criminal charge and has got to be proved beyond doubt. The standard of proof required for establishing a charge of "Corrupt practice" is the same as is applicable to a criminal charge. Therefore, Section 83(1)(b) mandates that when the allegation of "Corrupt practice" is made, the Election Petition shall set forth full particulars of the corrupt practice that the Election Petitioner alleges, including as full a statement as possible of the names of parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The pleadings with regard to the allegation of corrupt practice have to be precise, specific and unambiguous whether it is bribery or undue influence or other corrupt practices as stated in Section 123 of the Act. If it is corrupt practice in the nature of undue influence, the pleadings must state the full particulars with regard to the direct or indirect interference or attempt to interfere by the candidate, with the free exercise of any electoral right as stated in Section 123(2) of the Act. We are afraid, Mr. Gupta has failed to point out from the pleadings of the Election petition as to how the appellant had interfered or attempted to interfere with the free exercise of any Page No.# 62/70 electoral right so as to constitute "undue influence" under Section 123(2) of the Act.
22. So far as the ground contained in clause (d) of Section 100(1) of the Act, with regard to improper acceptance of the nomination of the Appellant is concerned, there is not a single averment made in the Election Petition as to how the result of the election, in so far as the appellant was concerned, was materially affected by improper acceptance of his nomination, so as to constitute a cause of action under Section 100(1)(d)(i) of the Act. Though it is true that the Election Petitioner is not required to state as to how corrupt practice had materially affected the result of the election, nonetheless it is mandatory to state when the clause (d)
(i) of Section 100(1) is invoked as to how the result of election was materially affected by improper acceptance of the nomination form of the Appellant.
23. As transpiring from the Election Petition, the respondent no. 1 himself had not raised any objection in writing against the nomination filed by the Appellant, at the time of scrutiny made by the Returning Officer under Section 36 of the Act.
According to him, he had raised oral objection with regard to the education qualification stated by the Appellant in the Affidavit in Form-26. If he could make oral objection, he could as well, have made objection in writing against the acceptance of nomination of the Appellant, and in that case the Returning Officer would have decided his objection under sub-section (2) of Section 36, after holding a summary inquiry. Even if it is accepted that he had raised an oral objection with regard to the educational qualification of the Appellant before the Returning Officer at the time of scrutiny, the respondent no. 1 has failed to make averment in the Election Petition as to how Appellant's nomination was liable to be rejected by the Returning Officer on the grounds mentioned in Section 36(2) of the Act, so as to make his case fall under clause (d)(i) of Section 100(1) that there was improper acceptance of the nomination of the Appellant. The non-mentioning of the particulars as to how such improper acceptance of nomination had materially affected the result of the election, is apparent on the face of the Election Petition.
24. As stated earlier, in Election Petition, the pleadings have to be precise, specific and unambiguous. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC. An omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition under Order VII Rule 11 read with Section 83 and 87 of the RP Act.
107) In this regard, the Court may refer to the case of Manohar Joshi (supra), cited by the learned senior counsel for the applicant, where it has been held, inter alia, that all the constituent parts of corrupt practice has to be Page No.# 63/70 pleaded to constitute cause of action, which can then be proved by evidence.
108) Moreover, in light of the decision in the case of Hardwari Lal (supra), wherein it was held that Section 83 of the RP Act was mandatory and particulars of corrupt practice were to be set out in full and no amendment in of particulars of corrupt practice was permissible. Therefore, a mere statement in the election petition regarding pendency of three FIRs cannot constitute complete cause of action.
109) The same legal principles have been laid down in the case of Azhar Hussain (supra), and F.A. Sappa (supra) to the effect that every election petition shall contain a concise statement of material facts. In F.A. Sappa (supra), it was also held that the requirement of section 81(3) of the RP Act was mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86(1) of the RP Act. It was further held that it is essential that the particulars of charge or allegation are clearly and precisely stated in the election petition to afford a fair opportunity to the person against whom it is levelled to effectively counter the same. It was also held that entire bundle of facts which would constitute a complete cause of action must be concisely stated in an election petition. Moreover, in the said judgment, the Supreme Court of India had approved the finding by the High Court that the power conferred by section 86(5) of RP Act cannot be exercised to allow any amendment which will have the effect of introducing a corrupt practice not previously alleged in the election petition.
110) Moreover, in the case of D. Venkata Reddy (supra), cited by the learned senior counsel for the applicant, the Supreme Court of India had held as Page No.# 64/70 follows:-
4. Another principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt .
111) In light of the observations made by the Supreme Court of India in the case of D. Venkata Reddy (supra), if the decision of the Supreme Court of India in the case of Karim Uddin Barbhuiya (supra), is examined, the Court is unable to hold that the case of Karim Uddin Barbhuiya (supra) can be distinguished on the ground that in that case, the allegations made in the election petition was vague and bald. In the present case in hand, the essential ingredients to establish the case of corrupt practice of undue influence is found absent, being (i) as to how; (ii) by what means, and (iii) on whom the allegation regarding corrupt practice of undue influence has been committed by the applicant. Thus, three sets of allegations against the applicant, being (i) non- disclosure of three FIRs in applicant's affidavit under Form-26; (ii) failure of applicant and his wife to disclose movable and immovable properties in applicant's affidavit under Form-26; and (iii) failure to disclose investment made by the applicant in immovable property in applicant's affidavit under Form-26 are found to be covered by lack of required pleadings to effectively pursue the applicant in the election petition.
112) This leaves the Court to examine the fourth allegation of the applicant signing the election nomination form as Nizam Uddin Choudhury. In this regard, it would be appropriate to quote the definition of signature as given in Black's Law Dictionary, Seventh Edition. The same is quoted below:-
Page No.# 65/70 Signature.- (16 c) 1. A person's name or mark written by that person or at the person's direction; esp., one's handwritten name as one ordinarily writes it, as at the end of a letter or a check, to show that one has written it.- Also termed as sign manual. 2. Commercial law. Any name, mark, or writing used with the intention of authenticating a document. UCC 1-201(b)(37), 3-401(b)- Also termed legal signature. 3. The act of signing something; handwriting of one's usual fashion.
"The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the singer." Restatement (Second) contracts S.134 (1979).
113) Therefore, if signature of a person is a mark of a person, and can be put upon instructions of a person, then merely because a signature contains a spelling different from the way in which the name is written, cannot be held to be fatal. The notice of the Court is not drawn to any provision of law or judicial pronouncement, debarring a person to put his/her signature with a spelling not matching with the name in which one files nomination paper. Similarly, there is a possibility that a person may have a particular way to sign at his/her workplace, but may use a totally different signature to operate bank account, and still put a very short signature while receiving postal articles or courier.
114) Be that as it may, it is not the pleaded case of the petitioner that when the nomination papers were being scrutinized, the respondent had raised objection for rejection of the nomination paper of the applicant on the ground of mismatch in his name in the way the applicant had spelt his name in the nomination form and the way he had spent his name in his signature.
115) The case of Church of Christ Charitable Trust and Educational Charitable Society (supra), was also cited to support the submission made by the learned counsel for the respondent that while scrutinizing the averments made in the plaint, it is the duty of the trial Court to ascertain the materials the Page No.# 66/70 materials for cause of action.
116) Thus, under Clause (b) of Sub-Section (1) of Section 83 of the RP Act, it is required that the election petitioner shall set forth full particulars of the material facts that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.
Therefore, in the considered opinion of the Court all the above would constitute material facts. Accordingly, the lack of the essential ingredients of (i) as to how;
(ii) by what means, and (iii) on whom the allegation regarding corrupt practice of undue influence has been committed by the applicant was required to be pleaded by the respondent. Thus, the case of Church of Christ Charitable Trust and Educational Charitable Society (supra) is not found to help the respondent in any way.
117) The case of Church of Christ Charitable Trust and Educational Charitable Society (supra) was also cited to show that cause of action does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to enable him to obtain a decree. In this aspect also, there is no quarrel. However, at the same time, the requirement of clause (b) of Sub- Section (1) of Section 83 of the RP Act is also required to be scrupulously followed and/or complied with. Thus, it is not acceptable that without setting up all the ingredients and/or full particulars of corrupt practice, any evidence can be effectively allowed to be led in an election petition. This is so because as per the law laid down in the case of Azhar Hussain (supra).
118) The case of Dahiben (supra), was also cited for the legal Page No.# 67/70 proposition laid down by the Supreme Court of India that if allegations made in the plaint prima facie show cause of action, the Court cannot embark upon an enquiry whether the allegations are true. In this order, the Court has not done so. Nonetheless, the said legal proposition would not come in the way of the Court to examine whether the election petition discloses a cause of action when the respondent has alleged corrupt practice of undue influence because it appears that the provision of Section 83 of the RP Act, lays down stringent standard of pleading because not only the election petitioner has to set forth full particulars of corrupt practice, including as full a statement as possible of the names of the parties and the date and place of such practice, but also has to support the same with an affidavit required to verify the pleading and is also required to be accompanied with an affidavit in the prescribed form. Therefore, providing of particulars in pleadings cannot be confused with disclosure of evidence.
119) Therefore, before examining the allegations made in the election it would be apposite to refer to the observations made by the Supreme Court of India in paragraph nos. 12 to 15 the case of Karim Uddin Barbhuiya v. Aminul Haque Laskar, (2024) 0 Supreme(SC) 318: (2024) 4 SCR 523 , which is extracted below:-
12. At the outset, it may be noted that as per the well settled legal position, right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right. It is a statutory right governed by the statutory provisions of the RP Act. Outside the statutory provisions, there is no right to dispute an election. The RP Act is a complete and self-contained code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of Civil Procedure Code are applicable to the extent as permissible under Section 87 of the RP Act.
13. It hardly needs to be reiterated that in an Election Petition, pleadings have to be precise, specific and unambiguous, and if the Election Petition does not Page No.# 68/70 disclose a cause of action, it is liable to be dismissed in limine. It may also be noted that the cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the RP Act. As held in Bhagwati Prasad Dixit 'Ghorewala' vs. Rajeev Gandhi, (1986) 4 SCC 78 and in Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Supp. SCC 93 if the allegations contained in the petition do not set out the grounds as contemplated by Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the pleadings are liable to be struck off and the Election Petition is liable to be rejected under Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan Nayak v.
Ramratan Chaturvedi and Others, (1990) 2 SCC 173 be also made, wherein this Court upon review of the earlier decisions, laid down following principles applicable to election cases involving corrupt practices:
"5. This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being:
(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, 1987 Supp. SCC 93 and Kona Prabhakara Rao vs. M. Seshagiri Rao, (1982) 1 SCC 442.
(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh vs. Surinder Singh, (1973) 2 SCC 599: (1974) 1 SCR 52, Kona Prabhakara Rao vs. M. Seshagiri Rao, (1982) 1 SCC 442 and Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, 1987 Supp. SCC 93.
(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya vs. Lachhi Ram, (1955) 1 SCR 608: AIR 1954 SC 686 and Rahim Khan vs. Khurshid Ahmed, (1974) 2 SCC 660.
(4) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav vs. Thakur Muneshwar Nath Singh, (1984) 4 SCC 649.
(5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or Page No.# 69/70 unimpeachable documents vide Rahim Khan vs. Khurshid Ahmed, (1974) 2 SCC 660, M. Narayana Rao vs. G. Venkata Reddy, (1977) 1 SCC 771:
(1977) 1 SCR 490, Lakshmi Raman Acharya vs. Chandan Singh, (1977) 1 SCC 423: (1977) 2 SCR 412 and Ramji Prasad Singh vs. Ram Bilas Jha, (1977) 1 SCC 260.
(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan vs. Khurshid Ahmed, (1974) 2 SCC 660, Mohan Singh vs. Bhanwarlal, (1964) 5 SCR 12: AIR 1964 SC 1366 and Ramji Prasad Singh vs. Ram Bilas Jha, (1977) 1 SCC 260."
15. The legal position with regard to the non-compliance of the requirement of Section 83(1)(a) of the RP Act and the rejection of Election Petition under Order VII Rule 11, CPC has also been regurgitated recently by this Court in case of Kanimozhi Karunanidhi vs. A. Santhana Kumar and Others 2023 SCC OnLine 573:
"28. The legal position enunciated in afore-stated cases may be summed up as under:
(i) Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code.
(ii) The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgment of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad.
(iii) Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary.
(iv) In order to get an election declared as void under Section 100(1)(d)
(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected.
(v) The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose.
Page No.# 70/70
(vi) An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act ."
120) Therefore, as elaborately stated hereinbefore, in the context of four allegations on which the election of the applicant (i.e., returned) is assailed, as the pleadings in the election petition are forced lacking in respect of material fails, the Court is constrained to here that there is incomplete cause of action for maintaining the election petition.
121) Accordingly, the Court is of the considered opinion that under clause (a) of Rule 11 of Order VII of the CPC, read with Section 83 of the RP Act, the election petition is liable to be rejected, which the Court hereby does. The sole point of determination is answered accordingly.
122) Resultantly, this interlocutory application stands allowed. Consequently, the connected Election Petition No. 4/2021 is rejected.
123) In terms of the provision of Section 103 of the Representation of the People Act, 1951, the Registry shall communicate an authentic copy of this order to (i) The Election Commission of India, and (ii) The speaker of the Assam Legislative Assembly.
JUDGE Comparing Assistant