Dr. Raj Kumar Upadhyay vs Jagveer Kishor Jain & 6 Others
2017 Latest Caselaw 1381 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Civil Misc. Application No. 374934 of 2014
 
                       In 
 
Case :- ELECTION PETITION No. - 5 of 2014
 

 
Petitioner :- Dr. Raj Kumar Upadhyay
 
Respondent :- Jagveer Kishor Jain & 6 Others
 
Counsel for Petitioner :- In Person,N.K.Pandey,Sudha Pandey
 
Counsel for Respondent :- Ravi Kiran Jain,Ankit Kr.Rai,Pankaj Agarwal,Som Veer
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

This is an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 to reject the instant election petition on the ground that inclusion and non-inclusion of electors can be gone prior to last date of election and cannot be challenged in the election petition.

The basic facts pertaining to the issue in question may be stated as; the petitioner has moved this election petition under Section 80 of the Representation of People Act, 1951 challenging the validity of the election of respondent no. 1, the returned candidate, on the ground that his election has been vitiated as a large number of void votes have been accepted which has materially affected the election in terms of Section 100 (1)(d)(iii) of the Representation of People Act, 1951 as well as non-compliance of the provisions of the Article 171(3)(c) of the Constitution of India.

The Election Commission issued a notification under Section 16 of the Representation of People Act, 1951 (for short, "the Act, 1951") to elect the members of Uttar Pradesh Legislative Council from the teachers' constituencies of the State including Agra Division Teachers' Constituency. The Commission issued the following election programme:

(i) the last date for filing of nomination paper : 05.03.2014;

(ii) the date of scrutiny of nomination papers : 08.03.2014;

(iii) the date of poll 				  	: 23.03.2014; 
 
(iv) the date of counting and declaration of result 	: 26.03.2014.
 

The petitioner, who claims to be a teacher, filed his nomination and contested the election from teachers' constituency of district Agra. On 26.3.2014 the result of the election was declared wherein the returning officer declared the respondent no. 1 as a duly elected. For the said seat he received 6621 votes and the petitioner received 1133 votes and one Guman Singh Yadav received 4353 votes. Two other candidates namely Niranjan Singh Solanki and Ram Kailash received 4353 votes and 3171 votes respectively.

The returned candidate has filed the instant application inter alia on the ground that the dispute raised in the instant election petition to the effect that 11665 votes of part-time teachers of self-financing schools of Agra Division Teachers' Constituency have been illegally registered as the electors and they have been allowed to cast their votes which were void and bogus votes, is totally misconceived.

It is mentioned that the part-time teachers are also teacher in terms of Article 171(3)(c) of the Constitution read with Section 27(3) (4) & (5) of the Representation of People Act, 1950 (for short, "the Act, 1950").

It is stated that Section 27(5)(b) of the Act, 1950 does not speak about anything with regard to non-inclusion of Part-time Teachers.

It is further stated that the eligibility of teaching staff cannot be questioned in election petition and this cannot be a ground for setting aside the election. The question regarding inclusion and non-inclusion of electors can be raised prior to the last date of nomination and not thereafter as laid down under Section 23(3) of the Act, 1950 and any question raising the said dispute after completion of the election cannot be a ground for setting aside the election nor the said issue can be looked into by this Court in an election petition thus the entire issue raised with regard to the inclusion of part-time teachers is wholly misconceived.

It is further stated that the election petition can be filed only on the grounds mentioned under Section 100 of the Act, 1951 but in the instant election petition the grounds taken are prior to the commencement of the process of election; this Court has no jurisdiction to go behind the electoral roll as provided under Section 62(1) of the Act, 1951.

An objection has been filed by the petitioner to the said application wherein it is stated that the petitioner neither challenged the validity of the electoral roll nor challenged the inclusion or deletion of eligible qualified teachers named in the electoral roll.

It is stated that the election has been materially affected due to improper reception of the bogus and void votes. Hence the issue is clearly covered under Section 100(1)(d)(iii)&(iv) of the Act, 1951.

I have heard Sri R.K. Jain, learned Senior Advocate assisted by Sri Pankaj Agarwal in support of the application (moved by the returned candidate under Order VII, Rule 11 CPC) and Sri N.K. Pandey for the petitioner.

Sri Jain submitted that the validity of electoral roll cannot be challenged in election petition. The issue raised in the election petition could have been challenged before the date of nomination. Once the election process is over, the Court has no jurisdiction to consider the validity of electoral roll.

Sri Jain further submitted that the Election Commission's directions that Part-time Teachers may not be included in the electoral roll is a mere recommendation and unless the State approves it, it cannot be implemented. He has further submitted that no material fact has been stated in the election petition thus the petition is liable to be dismissed summarily under Order VII, Rule 11 CPC. He has placed reliance on judgments of the Supreme Court in the case of Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577 and Shri Shreewant Kumar Choudhary v. Shri Baidyanath Pajiar, AIR 1973 SC 717.

Learned counsel for the petitioner Sri N.K. Pandey submits that the election petitioner has stated all the material facts which are necessary to formulate the complete cause of action. The various paragraphs of the election petition are precise and specific. The petitioner has disclosed the material facts in the election petition relating to ground nos. (A), (B) & (C).

Sri Pandey has taken the Court to various paragraphs of the election petition to demonstrate that the petitioner has stated the facts which constitute the cause of action for filing the election petition. He further submits that Article 171 of the Constitution clearly mandates that only those persons are entitled to vote under the teachers' constituency, who are engaged in teaching for at least three years of an institution, which is not the below Secretary level and is ordinarily resident of the teachers constituency. The similar requirement is under Section 27(5)(b) of the Act, 1950.

He further urged that the Part-time Teachers are not eligible to be recorded as an electoral in view of paragraph-4 of the order dated 25.9.2013 issued by the Election Commission of India which it has issued exercising its power under Article 324 of the Constitution. The chief election officer has also issued an order dated 14.6.2013 to the same effect.

Lastly, Sri Pandey urged that the returned candidate has not moved any application under Order VI, Rule 16 CPC to the effect that the pleadings of the election petition are unnecessary, vexatious, scandalous, frivolous, and liable to be struck off, thus in absence of any application under Order VI, Rule 16 CPC striking out parts of the present case is not required. The returned candidate has only filed an application under Order VII, Rule 11(a) CPC with the prayer that the election petitioner did not disclose cause of action, therefore, the election petition may be dismissed. It is also urged that the respondent no.1 has not filed written statement till date.

Learned counsel for the petitioner has relied on a large number of decisions of the Supreme Court and this Court. Some of the decisions on which he has placed heavy reliance are: AIR 1970 SC 314, Baidyanath Panjira v. Sita Ram Mahto and others; JT 1999 (2) SC 94, D. Ramchandran v. R.V. Jankiraman & Ors.; JT 1999(1) SC 126, Sri H.D. Revanna v. Sri G. Puttaswamy Gowda & Ors.; AIR 1999 SC 3033, P.A. Ahammed Ibrahim v. Food Corporation of India; AIR 2012 SC 2638, Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors.; AIR 1978 SC 851, Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others; AIR 1970 SC 814, Baidyanath Panjira v. Sita Ram Mahto and others; a Division Bench of this Court at Lucknow Bench in Writ Petition No. 1269/2008 (PIL) dated 3.4.2008, decision dated 18.5.2010 passed in Writ Petition No. 4634 (MB) of 2010, and decision dated 8.11.2010 in Civil Misc. Writ Petition No. 65575 of 2010.

I have heard learned counsel for the parties and considered their submissions.

The instant election petition has been primarily filed on the ground of non-compliance of Article 171(3)(c) of the Constitution. According to the petitioner the inclusion of a large number of part-time teachers has materially affected the election. At this stage the only question arises is that whether the election petition can be dismissed at threshold on the ground that the petition does not disclose the material facts.

Suffice it would be to note, that the returned candidate has not moved any application for striking out of the pleadings of the petition nor any submission has been made that the election petition does not contain the concise statement of the material facts. In the written synopsis also no such submission has been made. Only a prayer has been made to strike out paragraph nos. 18 to 25. However, during submissions no such even oral prayer was made to the said effect.

The petitioner in support of the grounds taken in the election petition has stated the following material facts in paragraph nos. 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the election petition. For the sake of convenience those paragraphs are extracted herein below:

"20. That, it is relevant to mention here that Shri Om Prakash Sharma, Chairman, Aswashan Samiti, U.P. Legislative Council, by his letter dated 27.09.2013 has also requested to Chief Electoral Officer, U.P., Lucknow that part-time teachers are not eligible to be included in the electoral roll in view of the Government Order dated 03.08.1987. The photocopy of the objection/ representation dated 27.09.2013 filed by Shri Om Prakash Sharma, Chairman, Aswasan Samiti is being filed herewith and marked as Annexure no. 4 to this election petition.

21. That, Shri Jagvir Kishor Jain, sitting M.L.C., also filed objection to this effect that the part-time teachers are not eligible to be included in the electoral roll but has been illegally inducted therefore, in view of the decision of the Court and in view of the orders of the Election Commission of India dated 01.01.2013 suitable order may be passed and names of the part-time teachers may not be included in the electoral roll and if included, the same may be deleted. The photocopy of the complaint dated 28.09.2013 and order of the Commissioner, Aligarh Division dated 2.10.2013 is annexed herewith and marked as Annexure No.5 to this election petition.

22. That Shri Ramanand Dwivedi, State Secretary of U.P. Madhyamik Shikshak Sangh, on 30.10.2013 filed objections in respect of Khand Sankhya 179 of Nirvachak Namawali of Tehsil Tirwa District Kannauj, to this effect that the electors mentioned in the complaint at respective serial number are not qualified and eligible for recording as an elector on 01.11.2013 as they are not teachers as prescribed under Section 27(5)(b) of R.P. Act 1950, and also filed objections in respect of Khand Sankhya 176, 172, 174, 175 & 173 and prayed for deletion of their name from the electoral roll. The photocopy of the objections dated 30.10.2013 filed by Shri Ramanand Dwivedi, Secretary of the U.P. Madhyamik Shikshak Sangh, Kannauj is being annexed herewith and marked as Annexure no.6 to this election petition.

23. That said Shri Ramanand Dwivedi again filed their objections on 14.11.2013 before the Zila Nrivachan Adhikari, Agra Khand Sikshak Nirvachan Kshetra, District Kannauj in respect of electoral roll of Khand Sankhya 179, 176, 172, 143, 144 & 173. The photocopy of the objection dated 11.11.2013 filed by Shri Ramnand Dwivedi, Secretary of the U.P. Madhyamik Shikshak Sangh, Kannauj is being annexed herewith and marked as Annexure No.7 to this election petition.

24. That the aforesaid Shri Ramanand Dwivedi, Secretary of the U.P. Madhyamik Shikshak Sangh also filed reminder objections against the illegal inclusion of the electors in the electoral roll before the Commissioner, Kanpur Division, Kanpur as District Kannauj, Auraiya, Etawah & Farrukhabad comes under the territorial jurisdiction of Kanpur Division. The photocopy of the reminders dated 19.02.2014 filed by Shri Ramanand Dwivedi, Secretary of the U.P. Madhyamik Shikshak Sangh is being filed herewith and marked as Annexure no.8 to this election petition.

25. That it will not be out of place to mention here that in the same facts and circumstances the Electoral Registration Officer/ Commissioner, Gorakhpur Division, Gorakhpur vide its order dated 10.01.2014 directing all the District Magistrates/ Assistant Electoral Registration Officer of Gorakhpur - Faizabad Division Teachers' Constituency not to include the part-time teachers in the Teachers' Constituency Electoral Roll as per direction of the Election Commission of India. The photocopy of the letter dated 10.01.2014 issued by the Electoral Registration Officer/ Commissioner, Gorakhpur Division, Gorakhpur is being filed herewith and marked as Annexure No.9 to this election petition.

26. That it is relevant to mention here that the Chief Electoral Officer, U.P. vide its order dated 12.11.2013 and the Election Commission of India vide its letter dated 27.05.2013 and the letter of Chief Election Officer dated 26.09.2013 and the letter of the Election Commission of India dated 25.09.2013, clarified that the part-time teachers are not eligible to be included in the electoral roll of the teachers' constituency but, the Commissioner, Agra Division, Agra; Aligarh Division, Aligarh and Kanpur Division, Kanpur and the Assistant Electoral Registration Officer/ District Magistrates of Districts Agra, Mainpuri, Mathura, Firozabad, Etah, Aligarh, Etawah, Hathras except District Magistrate of Auraiya, Farrukhabad & Kannauj, illegally included the names of the part-time teachers in the teachers' constituency electoral roll and inspite of various objections their names were not deleted. The petitioner has prepared a chart of the part-time teachers of the self finance schools, who are not eligible and qualified to be included in the electoral roll but, illegally finds their place in the electoral roll and they are total 2982 votes in the District Agra, 2315 in District Mainpuri, 2223 in District Mathura, 1737 in District Firozabad, 1370 in District Etah, 617 in District Aligarh, 287 in District Etawah and 133 in District Hathras thus, total 11664 part-time teachers of the self financing schools were illegally included in the electoral roll and who has casted their votes on the date of polling i.e. on 23.03.2014 which materially affect the result of the election. The photocopy of the chart of part-time teachers prepared by the petitioner is being filed herewith and marked as Annexure No. 10 to this election petition.

27. That in fact these 11664 votes of the part-time teachers of the self financing schools of Agra Division Teachers' constituency are void and bogus votes. The exercise of their franchisees by these 11664 votes on the date of polling i.e. on 23.03.2014 at different polling centers, materially affect the result of the election in question.

28. That petitioner on 28.03.2014 filed their objections to this effect that the ineligible teachers teaching in the institutions which are not recognized prior to year 2010 were included in the electoral roll and further those teachers who were retired prior to year 2010 and the teachers who are dead, are illegally included and further, the part-time teachers of the self-financing institutions were at one hand included in the list while on the other hand in the districts Auraiya, Farrukhabad & Kannauj are not included and requested that the electoral roll must be amended legally. The photocopy of the objection/representation dated 28.03.2014 filed by the petitioner is being annexed herewith and marked as Annexure No. 11 to this election petition.

29. That neither Electoral Registration Officer nor Assistant Electoral Registration Officer of each district including Returning Officer paid heed on the objections filed by petitioner and above mentioned persons against the electoral roll of the Agra Division Teachers' Constituency and these authorities illegally allowed casting of void votes on 23.03.2014 which materially affect the result of the election in question."

At this stage it has to be seen that whether the relief sought by the petitioner can be granted if the statements made in the petition are proved to be true. It is not the case of the respondent returned candidate that any of the pleadings extracted hereinabove are vexatious and frivolous.

Before considering the rival submissions it would be appropriate to consider the relevant provisions of the Constitution, The Representation of People Act, 1950 and the provisions of the Representation of People Act, 1951. Article 171 deals with the composition of legislative assembly. The relevant part of Article 171(3) reads as under:

"171. Composition of the Legislative Councils.---

(3) Of the total number of members of the Legislative Council of a State---

(a) as nearly as may be, one third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;

(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university;

(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;

(d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly;

(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause(5)."

The Part-IV of the Representation of People Act, 1950 deals with the electoral rolls for council constituencies. Sub-section 5 of Section 27 of the Act, 1950, so far as material, reads as under:

"27. Preparation of electoral roll for Council constituencies.---

(5) Subject to the foregoing provisions of this section,--

(a) every person who is ordinarily resident in a graduates' constituency and has, for at least three years before the qualifying date, been either a graduate of a university in the territory of India or in possession of any of the qualifications specified under clause (a) of sub-section (3) by the State Government concerned, shall be entitled to be registered in the electoral roll for that constituency; and

(b) every person who is ordinarily resident in a teachers' constituency, and has, within the six years immediately before the qualifying date for a total period of at least three years, been engaged in teaching in any of the educational institutions specified under clause (b) of sub-section (3) by the State Government concerned, shall be entitled to be registered in the electoral roll for that constituency."

Section 83 of the Representation of People Act, 1951 requires that what should be contents of the petition. It reads thus:

"83. Contents of petition.---(1) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

Chapter-III of Part-VI of the Act, 1951 deals with trial of the election petitions. Section 86 enjoins that the High Court can dismiss the election petition which does not comply the provisions of Sections 81 or 82 or Section 117. Section 81 gives the procedure for presentation of the petitions and the limitation etc.. Section 82 mandates who shall be made party in the petition. Section 117 requires that the petitioner shall deposit security for the costs as per requirement of the rules of the Court.

The reading of the aforementioned section and the sub-section would show that Section 86 stipulates that election petition can be dismissed on those grounds, and in absence of those grounds the trial of the election petition shall be held. However, in addition to the grounds mentioned under Section 86 the election petition can also be dismissed under Order VII, Rule 11 CPC when it lacks requirement under Section 83 of the Act, 1951 for determination whether it discloses all primary or basic facts which are necessary to be established by the petitioner to succeed.

Section 83(1)(a) enjoins the word "material facts". The expression 'material facts' have been considered by the Supreme Court in a large number of the decisions. Justice M. Hidayatullah speaking for the Court in the case of Samant N. Balkrishna and another v. George Fernandez and others, (1969) 3 SCC 238, laid down five criteria which are mandatory under Section 83 of the Act, 1951 to find out whether the election petition discloses material facts and particulars.

Regard being had to the fact that under Order VII, Rule 11 CPC a plaint can be rejected amongst other grounds when it does not disclose the cause of action. Order VII, Rule 11 CPC insofar as material reads thus:

"11. Rejection of plaint - The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provision of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

Before I deal with the contention of Sri Jain, I consider it appropriate to restate the settled position of law as it emerges from a large number of decisions of the Supreme Court.

The Supreme Court in the case of Saleem Bhai and others v. State of Maharashtra and others, (2003) 1 SCC 557 has held as under:

"9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit---before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects."

In the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others, (2012) 7 SCC 788 the Supreme Court has held thus:

"17...The Courts need to be cautious in dealing with requests for dismissal of the petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed..."

In the context of election dispute the Supreme Court considered this issue elaborately in the case of Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, wherein the Court has held as under:

"12. ...The whole purpose of confernment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument..."

The Supreme Court in the case of Ashraf Kokkur v. K.V. Abdul Khader and others, (2015) 1 SCC 129 has held that the election petition contains only concise statement of material fact and not material particulars. The enquiry under Order VII, Rule 11 CPC is only to see whether the pleadings disclosed a cause of action and the Court embark the limited enquiry to see whether the petition should be thrown out at the threshold. The Court has quoted with approval the following judgments:

"23. This Court in Azhar Hussain v. Rajiv Gandhi (1986) Supp SCC 315, at para 11, has held that (SCC p. 324):

"11. ... Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case."

The charge levelled is that the respondent holds an office of profit as the Chairperson of the Kerala State Wakf Board and in that capacity he enjoys the profits attached to that office from the Government of Kerala.

24. In V.S. Achuthanandan v. P.J. Francis (1999) 3 SCC 737, a three-Judge Bench of this Court has taken the view that only because full particulars are not given, an election petitioner is not to be thrown out at the threshold. To quote Para 15: (SCC p. 747)

"15. ... An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. It is, therefore, evident that material facts are such primary facts which must be proved at the trial by a party to establish existence of a cause of action. Whether in an election petition a particular fact is a material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the case"

Again at para 16 of V.S. Achuthanandan case (1999) 3 SCC 737, it was held that:

"16. ... So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. ... the failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars."

(Emphasis supplied)

25. In Hari Shanker Jain v. Sonia Gandhi (2001) 8SCC 233, a three-Judge Bench of this Court held that the expression "cause of action" would mean facts to be proved, if traversed, in order to support his right to the judgment of the court and that the function of the party is to present a full picture of the cause of action with such further information so as to make opposite party understand the case he will have to meet. To quote Para-23: (SCC p. 251)

"23. ... The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez (1969) 3 SCC 238 and Jitendra Bahadur Singh v. Krishna Behari, (1969) 2 SCC 433). Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis (1999) 3 SCC 737 this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead 'material facts' is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.""

Applying these principles on the facts of the case, I find that the petitioner has filed the election petition on the ground of Section 100(1)(d) of the Act, 1951 which provides that the election can be said to be void on the ground that illegal votes have been accepted. The petitioner has not filed this petition on the ground of corrupt practices hence the material fact about the corrupt practices adopted by the returned candidate does not arise in the present case.

The petitioner in paragraph-26 of the petition has averred that the Election Commission of India vide its communication dated 27.5.2013 and consequential communication of the Chief Election Officer dated 26.9.2013 clarified that Part-time Teachers are not eligible to be included in the electoral roll of the teachers' constituency. A similar communication was sent by the Chief Electoral Officer, U.P. vide its order dated 12.11.2013 but ignoring those directions the Commissioners, Agra Division Agra; Aligarh Division, Aligarh; and, Kanpur Division, Kanpur and the Assistant Electoral Registration Officer/ District Magistrates of Districts Agra, Mainpuri, Mathura, Firozabad, Etah, Aligarh, Etawah, Hathras illegally included the names of the Part-time teachers of the Teachers' Constituency in spite of various objections and their names may not be deleted.

It is stated that 11664 votes of the Part-time Teachers of the Self-financed Schools of Agra Division Teachers Constituency which are void and bogus, have been allowed to be cast. They have been allowed to cast their votes on polling date i.e. 23.3.2014 which has materially affected the result of the election in question.

It is averred in paragraph-21 of the election petition that the returned candidate Sri Jagvir Kishor Jain i.e. the respondent no. 1 has also filed objections to the effect that Part-time Teachers are not eligible to be included in the electoral roll in view of the decision of the Court and the order of the Election Commission of India dated 1.1.2013. He made a request that the names of Part-time Teachers may not be included in the Electoral Roll and if included the same may be deleted. A copy of the complaint of the returned candidate is on the record.

It is also stated in the election petition that Sri Om Prakash Sharma, Chairman, Ashwasan Samiti, Uttar Pradesh Legislative Council vide his letter dated 27.9.2013 also requested the Chief Electoral Officer, U.P., Lucknow that Part-time Teachers are not eligible to be included in the electoral roll in view of the Government order dated 3.8.1987.

A perusal of the paragraphs of the election petition, mentioned above, would go to show that the petitioner has stated the material fact in support of Ground Nos. A, B & C and it cannot be said that the petition lacks the material facts. The Supreme Court in the case of Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and others, (1994) 2 SCC 392 has held that reasonable cause of action means a cause of action with some chances of success when only the allegations in the pleadings are considered and the mere fact that the case is weak and is not likely to succeed is no ground for striking it out. Relevant part of the judgment in Mohan Rawale (supra) reads as under:

"10. We may take up the last facet first. As Chitty, J. observed, "There is some difficulty in affixing a precise meaning to" the expression "discloses no reasonable cause of action or defence". He said: "In point of law ... every cause of action is a reasonable one." [See Republic of Peru v. Peruvian Guano Co., (1887) 36 Ch D 489] A reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the "grounds" in Section 81(1); of "material facts" in Section 83(1)(a) and of "full particulars" in Section 83(1)(b) are obvious. The provisions of Section 83(1)(a) and (b) are in the familiar pattern of Order VI, Rules 2 and 4 and Order 7, Rule 1(e) Code of Civil Procedure. There is a distinction amongst the 'grounds' in Section 81(1); the 'material facts' in Section 83(1)(a) and "full particulars" in Section 83(1)(b)."

(emphasis supplied)

As can be seen from the aforesaid facts the returned candidate himself wrote a letter to the concerned authorities for not including the name of the Part-time Teachers in the electoral roll. The averments made in paragraph-21 of the election petition are unrebutted at this stage, hence, in my view, it cannot be said that the election does not show the material facts. The words 'material fact' have to be considered in the context of each case. In the present case the petitioner is not challenging the election of the returned candidate on the ground of corrupt practice. In case of allegation of corrupt practice, the Supreme Court in the decisions, mentioned above, has emphasized that material facts must be pleaded in the election petition and only general and vague allegations are not sufficient. In absence of allegation of corrupt practice, the material fact in the context of the present case is to be seen. The principal issue which begs consideration is that whether a part-time teacher can be treated as a teacher. On this issue learned counsel for the returned candidate has not cited any case law in support of his submissions that the part-time teacher can be treated as a teacher for the electoral purposes.

Sri Ravi Kiran Jain, learned Senior Advocate has placed heavy reliance on the judgments of the Supreme Court in Shri Shreewant Kumar Choudhary (supra). This decision is of no help. In the said case the election petition was heard on merit and it was not rejected summarily. Sri Jain has also placed reliance on a judgment in Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577. In the said case the election petition was filed challenging the election of the returned candidate on a number of grounds including the allegation of corrupt practice of undue influence, hiring of vehicles, carrying voters and obtaining excess of Government servants and incurring expenses at the election in excess of the permissible limit.

The returned candidate had filed an application under Order VI, Rule 16 of the Code of Civil Procedure, 1908 for striking out the pleadings contained therein on the ground that the allegations in the election petition are vague, general, frivolous and unnecessary which do not disclose any cause of action. It was further prayed that the election petition be rejected under Order VII, Rule 11 CPC read with Section 87 of the Act, 1951. The Supreme Court relying on the judgment in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 had scrutinized the averments made in paragraph nos. 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 in the election petition, which were completely vague and general. The Court after screening the election petition came to hold that the petitioner therein failed to plead complete details of corrupt practice which could constitute a cause of action as contemplated by Section 100 of the Act, 1951. It was also of the view that the election petition failed to give the material facts and other details of the alleged corrupt practice. In view of the said fact the said case is distinguishable.

Sri Jain relied on the judgment in Azhar Hussain (supra). In the said case the issue raised before the Supreme Court was that whether an election petition can be rejected summarily inasmuch as Section 86 of the Act, 1951 does not advert to Section 83 of the Act hence it was urged that there was no power in the Court for trying and dismissing the election petition in exercise of power under the Civil Procedure Code.

The second argument raised was that even if the Court has power to dismiss the election petition summarily, the power cannot be exercised at the threshold. The Supreme Court in the light of the said submission has held that if the pleadings are unnecessary, scandalous, frivolous or vexatious and such pleadings which are likely to cause embarrassment or delay the fair trial of the election, the Court can exercise discretionary power under the Civil Procedure Code to strike out such pleadings. It further held that the Court in exercise of power under the Code of Civil Procedure can decide a preliminary point if it is satisfied that any point going to the root of the matter pertaining to jurisdiction or maintainability arises and then the petition can be dismissed without proceeding to record evidence and hear elaborate argument.

On a careful consideration of the submissions of learned counsel on either side and relevant law to which my attention was drawn, I am of the opinion that the election petition raises the triable issues and it has disclosed the cause of action, and the material facts hence it cannot be summarily rejected under order VII, Rule 11 CPC. Accordingly, the application moved on behalf of the returned candidate under Order VII, Rule 11 CPC lacks merit and is liable to be rejected. Accordingly, it is rejected.

List the election petition on 28th July, 2017.

Order Date :- 30.5.2017

SKT/Digamber