Shailendra Yadav Lalai vs Ramesh And 11 Others
2023 Latest Caselaw 16962 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


AFR
 
Reserved on 23.03.2023
 
Delivered on  03.07.2023
 

 

 
Case :- ELECTION PETITION No. - 3 of 2022
 

 
Petitioner :- Shailendra Yadav Lalai
 
Respondent :- Ramesh And 11 Others
 
Counsel for Petitioner :- In Person,Saroj Kumar Yadav,Shailendra Yadav Lalai (In Person)
 
Counsel for Respondent :- Dhirendra Kumar Srivastava,Akhilesh Misra,Amar Bahadur Singh,Babu Lal Ram,Dharmendra Kumar Singh,Kamlesh Kumar Rajbhar,Lalta Prasad,Udayan Nandan
 

 
Hon'ble Saral Srivastava,J.

Order on Civil Misc. Application No.6 of 2022, under Order VII Rule 11 of C.P.C.

&

Order on Civil Misc. Application No.7 of 2022, under Section 86 (1) of The Representation of People Act, 1951)

1. Heard Sri Shashi Nandan, learned Senior Advocate, assisted by Sri Udayan Nandan, learned counsel for the respondent no.1/applicant, and Sri Anil Kumar Sharma, learned counsel for the election-petitioner assisted by Sri Saroj Kumar Yadav, Advocate.

2. The respondent no.1-Ramesh, who is the successful candidate in the election of the Assembly Constituency No.365, Shahganj, District Jaunpur, seeks summary dismissal of the election petition instituted by the election-petitioner by filing two applications; Civil Misc. Application No.6 of 2022 under Order 7 Rule 11 of C.P.C., (ii) Civil Misc. Application No.7 of 2022 under Section 86(1) of the Representation of the People Act, 1951.

3. The Election Commission issued a Notification under Section 15 of the Representation of People Act, 1951 (in short 'R.P. Act, 1951') on 14.01.2022 to constitute a new Legislative Assembly of Uttar Pradesh. The election of Assembly Constituency No.365, Shahganj, District Jaunpur was scheduled under the 7th phase of the election. Details of the election programme as notified are given herein-below:-

Starting day of Nomination

10.02.2022

Last date of Nomination

17.02.2022

Scrutiny of Nomination papers

18.02.2022

Last date of withdrawal of candidature

21.02.2022

Date of Polls

07.03.2022

Counting and Declaration of Result

10.03.2022

4. In the said election, the election petitioner along with twelve other candidates was in the contest for the member of the Legislative Assembly in respect to Constituency No.365, Shahganj, District Jaunpur. The election-petitioner filed his nomination paper as a candidate of Samajwadi Party (S.P.) under the symbol 'Bicycle' and respondent no.1 filed his nomination from Nirbal Indian Shoshit Hamara Aam Dal Party, popularly known as 'Nishad Party'. Respondent No. 1 was declared elected candidate by a margin of 719 votes.

5. The election of respondent no.1 has been challenged by the election petitioner primarily on the ground under Section 100 (1) (d) (i) & 100 (1) (d) (iv) of the R.P. Act, 1951. The Election Petitioner has set out the following grounds in the Election Petition to challenge the election of respondent no.1:

"(i) Because, the result of the election so far as it concern to respondent no.1 (returned candidate) has been materially affected by none compliance of provisions of Constitution of India, Representation of People Act, 1951 and Conduct of Election Rule, 1961 and order issued under Representation of People Act, 1951 and the orders, Sections and guidelines issued by Election Commission of India from time to time in exercise of its power confirmed by the Constitution.

(ii) Because, the result of election has been materially affected so far as, it concern to the respondent no.1 as Returning Officer and Assistant Returning Officer acted in contravention of Part-III of Conduct of Election Rules, 1961 and Rule 54-A of Conduct of Election Rules, 1961, and the orders, guidelines and instruction issued by Election Commission of India from time to time contained in Hand Book for the Returning Officer.

(iii) Because, the result of election has been materially affected as the respondent no. l illegally been allowed to participate in the election proceedings and his nomination were held valid contrary to legal preposition.

(iv) Because, the respondent no.1 has committed illegality and adopted corrupt practice by making concealment and material suppression of facts and wrongly disclosed criminal antecedent.

(v) Because, the respondent no.1 and his agents influenced the voters and bribed them by offering and providing money, sari and liquor, regarding which a voter namely Ramesh Sonker lodged a first information report no. 65 of 2022 in Police Station-Shahganj, District Jaunpur on 06.03.2022, under Sections 323, 504, 506, 188, 3 (2) (Va) of SC/ST Act, 1989 (Amendment Act, 2015).

(vi) Because, the election of returned candidate Ramesh from Constituency No.365 Shahganj is illegal and void due to committing corrupt practice, bribing the voters, influencing the electoral machinery and committing fraud while disclosing the criminal antecedent and financial strength as well as movable and immovable assets."

6. In respect of the aforesaid grounds, the material facts have been stated in the election petition from paragraph no.16 onwards.

7. Respondent no.1 has filed an application under Section 86(1) of the R.P. Act, 1951 urging that the election petitioner has not provided a concise statement of material facts on which he relies, therefore, the election petition does not comply with the provision of Section 83 of R.P . Act, 1951. It further stated that the election of respondent no.1 has been challenged by the election petitioner on the ground of corrupt practices alleged to have been committed by respondent no.1, and his agents during the election. However, the election petition does not contain a concise statement of material facts containing full particulars of any corrupt practices alleged to have been committed during the election. It is further stated that the election petition does not contain a full statement regarding names of persons alleged to have committed corrupt practices and the date and place of commission of each corrupt practice in accordance with the provisions of Section 83 (1)(a) & (b) of the R.P. Act, 1951. It is also stated that the election petitioner failed to file an affidavit in the prescribed format in support of the allegation of such corrupt practices and particulars thereof, and thus, has failed to comply with the proviso to Section 83(1) of the R.P. Act, 1951.

8. It is further stated that the election of respondent no.1 has been assailed on the ground of improper acceptance of the nomination form of respondent no.1, but the election petition lacks any detail demonstrating the effect on the result of the election by improper acceptance of nomination form of the respondent no.1 nor it contains a concise statement of material fact that the improper acceptance of nomination form of respondent no.1 has materially affected the result of the election so far as it concerns the respondent no.1.

9. It is further stated that the election petitioner alleged the discrepancy in the counting of votes in paragraphs nos. 26 to 35 of the election petition, but these paragraphs do not contain a concise statement of material facts. It is also stated that there is no allegation of manipulation with the EVM and votes polled and recorded in the elections, and thus, the allegation of wrong counting of votes is not supported by any material fact. Respondent no.1 has sought summary dismissal of the election petition for non-compliance of Section 81(1), 81(3), 83(1)(a) & (b) and the proviso to Section 83(1) of the R.P. Act, 1951.

10. In the application under Order 7 Rule 11 of the C.P.C., it is alleged that since the election petition lacks material facts containing full particulars of any corrupt practice, therefore, the election petition does not disclose a cause of action and is liable to be rejected under Order 7 Rule 11(1) of C.P.C.

11. The election petitioner filed objections to both the applications contending inter-alia that the election petition has been filed in accordance with the provision of Section 83 of the R.P. Act, 1951 and contains all material facts with full particulars which are necessary to constitute a cause of action, and as such, the applications filed by the election-petitioner are misconceived.

12. Sri Shashi Nandan, learned Senior Counsel for the respondent no.1/applicant in support of the aforesaid two applications has submitted that the election petition lacks a concise statement of material facts containing full particulars of corrupt practices including the names of persons, date, time, and place in support of allegations made in the election petition in support of grounds on which election of respondent no.1 has been assailed.

13. It is further submitted that it is evident from the pleadings in the election petition that it is bereft of the concise statement of material facts on which the election petitioner relies and also full particulars of corrupt practices including as full statement as possible of the name of the parties alleged to have committed such corrupt practice, the date and place of commission of such corrupt practice, the election petition is liable to be dismissed under Section 86(1) of the R.P. Act, 1951 for non-compliance of Section 83(1)(a) & (b) of the R.P. Act.

14. He further contends that proviso to Section 83(1) of the R.P. Act contemplates that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof. He submits that the affidavit as contemplated under the proviso to Section 83(1) of the R.P. Act, 1951 is not enclosed with the election petition, therefore, the election petition deserves to be dismissed summarily for non-compliance with the proviso to Section 83(1) of the R.P. Act, 1951.

15. He submits that the petitioner in order to succeed in challenging the election of respondent no.1 on the ground of improper acceptance of the nomination form has not only to establish that the nomination form of respondent no.1 has been improperly accepted, but he has also to prove that the improper acceptance of nomination form of the respondent no.1 has materially affected the result of election insofar as it concerns the respondent no.1. He submits that the election petitioner has not pleaded as to how the result of the election insofar as it concerns the election of respondent no.1 has been materially affected by the improper acceptance of nomination form of the respondent no.1 . It is further submitted that the election of the respondent no.1 has been challenged on the ground of wrong counting of votes, but the pleading in support of such ground also lack material facts and material particulars.

16. He lastly urged that the election petition lacks material facts and particulars with respect to the allegation that Form-20 has been prepared illegally. It is also urged that from perusal of the documents enclosed as Schedule 13 read with the allegations made in paragraphs nos.31 and 32 of the election petition, it is clear that the election petitioner has admitted that he has obtained 82,542 votes and the respondent no.1 has obtained 84,947 votes, therefore, on the own admission of election petitioner, he has lost the election by 2405 votes. Therefore, the margin of votes by which respondent no.1 won the election implies that the result of the election had not been materially affected. it is submitted that as the election petition does not comply with the provision of Section 83 (1) (a) & (b) and proviso to Section 83(1) of the Act, 1951, and further it does not disclose the cause of action and being barred by the provision of Section 83 read with Section 86 of the R.P. Act, 1951, therefore, the election petition deserves to be rejected summarily.

17. Per contra, Sri Anil Sharma, learned Senior Counsel submits that there is compliance with Section 83(1)(a) & (b) of the R.P. Act, 1951. It is submitted that the pleadings in the election petition have to be read as a whole and not in piecemeal. He submits that all primary and material facts necessary to disclose a cause of action have been stated in the Election Petition. He further submits that the concise statement of material facts containing full particulars as contemplated under Section 83(1)(a) & (b) of the R.P. Act, 1951 has been stated in the election petition in support of each grounds on which the election of respondent no.1 has been assailed by the election petitioner. Thus, there is compliance with Section 83(1)(a) & (b) of the R.P. Act, 1951. He submits that the nomination paper of respondent no.1 has been improperly accepted on account of suppression of material facts inasmuch as respondent no.1 has suppressed his criminal antecedents and has also not disclosed details of the property and the income tax, and since the suppression of facts is of substantial in nature, therefore, the nomination form of the respondent no.1 has been improperly accepted by the Returning Officer. Accordingly, it is submitted that the improper acceptance of the nomination paper of respondent no.1 has obviously materially affected the result of the election so far as it concerns respondent no.1 for the reason that if the nomination form of respondent no.1 had not been improperly accepted, he could not have contested the election. Accordingly, he submits that the two applications filed by respondent no.1 seeking summary dismissal of the election petition are liable to be rejected.

18. The judgments relied upon by both the learned counsel for the parties shall be referred to an appropriate place.

19. I have considered the rival submissions advanced by the learned counsels for the parties and perused the record.

20. The application under Section 86(1) of the R.P. Act, 1951 has been filed by respondent no.1 alleging non-compliance with Section 83(1)(a) & (b) and proviso to Section 83(1) of the R.P. Act, 1951. Section 83 of the R.P. Act, 1951 reads as under;-

"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]. "

21. In other words, the election petition should not only contain the concise statement of material facts on which the election petitioner relies, but shall set forth full particulars of any corrupt practice alleged by the election petitioner including as full statement as possible of the names of the parties alleged to have committed such corrupt practices, and the date and place of the commission of each such corrupt practice, duly signed by the petitioner and verified in the manner prescribed under the C.P.C. in the verification of pleadings in the light of Section 83 of the R.P. Act, 1951.

22. Now, it is to be seen whether the election petition complies with the mandate of Section 83(1)(a) & (b) and proviso to Section 83(1) of the R.P. Act, 1951.

23. In the case of Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253, the Apex Court has elaborated what exactly is the essence of expression 'material facts and particulars' which the election petitioner shall incorporate to meet the requirement of Section 83(1)(a) & (b) of the R.P. Act, 1951. Paragraph no.14 of the said judgment is reproduced herein-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. (1969) 3 SCR 217: (AIR 1969 SC 734) Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi.

(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. ( 1972) 2 SCR 742: (AIR 1972 SC 515) Hardwari Lal v. Kanwal Singh,

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 (AIR 1972 SC 515).

(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 (AIR 1972 SC 515).

(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 (AIR 1972 SC 515) (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 (AIR 1972 SC 515) (supra)."

24. Reference may also be had to the judgment in the case of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310, wherein it is held that the election petition can be summarily rejected in the exercise of power under the Code of Civil Procedure if the mandatory requirement enjoined by Section 83 of the R.P. Act, 1951 to incorporate the material facts in the election petition are not complied with. In the context of the present case, paragraph nos. 57 to 59 of the said judgment is reproduced herein-below:-

"57. It is settled legal position that all "material facts" must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of "material facts" on which the petitioner relies.

58. There is no definition of "material facts" either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511 tried to give various meanings of "material facts". The relevant paragraph 48 of the said judgment is reproduced as under:-

" 48. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third Edn.),p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party."

59. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient."

25. The two judgments, namely, Virendra Nath Gautam Vs. Satpal Singh and Others AIR 2007 SC 581 & Harkirat Singh Vs. Amrinder Singh (2005) 13 SCC 511 relied upon by the learned counsel for the election petitioner also reiterates what constitutes the 'material facts' and 'particulars' and the distinction between the 'material facts' and 'particulars'. Paragraph nos.33 & 34 of the judgment of Virendra Nath Gautam (supra) is reproduced herein below:-

"33. A distinction between 'material facts' and 'particulars', however, must not be overlooked.'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.

34. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."

26. In the case of Harkirat Singh (supra), the Apex Court again reiterated the distinction between the 'material facts' and 'material particulars'. Paragraph nos. 51 and 52 of the said judgment is reproduced herein-below:-

"51. A distinction between "material facts" and "particulars", however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.

52. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."

27. The object of conferring the power upon the Court to summary dismissal of the election petition if it lacks material fact and does not disclose a cause of action is to ensure that litigation which is meaningless and bound to prove abortive should not consume the precious time of the Court and save the respondents from harassment and to relieve him of the psychological burden of litigation so as to be free to follow their ordinary pursuits and discharge their duties. It is obvious that if the sword of Damocles of election petition keeps hanging on an elected member of the legislature, he would not feel sufficiently free to devote his wholehearted attention to matters of public importance that need his attention for the betterment of the people of the constituency for which he has been an elected representative.

28. The aforesaid judgments have emphasized that the 'material facts' are primary or basic facts which must be pleaded by the petitioner or by the respondent in support of the case set up by him either to prove his cause of action or defence. The particulars on the other hand are details in support of material facts pleaded by the party. All the 'material facts' must be pleaded by the party in support of the case set up by him since the object and purpose of pleading is to enable the opposite party to know the case he has to meet, failure to state even a single material fact will entail dismissal of the Election Petition. The material facts would include a positive statement of facts as also a positive averment of a negative fact.

29. It is also pertinent to note that the failure to plead material facts is fatal to the election petition, and no amendment of pleading to incorporate such material facts can be allowed after the limitation for filing the election petition expires. To reject an election petition summarily on the ground that it does not disclose a cause of action, the Court is obliged to look at the pleadings in the election petition and nothing else.

30. Now, in the light of the aforesaid principles explaining the object why the compliance of Section 83(1)(a) & (b) of the R.P. Act, 1951 is mandatory, the Court proceeds to analyse the respective arguments of the parties to find out whether the election petition complies with the requirement of Section 83(1)(a) & (b) and proviso to Section 83 and whether it discloses a cause of action or not.

31. The first ground of challenge to the election of respondent no.1 is that the election has been conducted on the basis of a revised anti-dated electoral roll dated 17.02.2022, from which the name of the number of voters had been removed whose names were in the electoral roll published on 05.01.2022. In this respect, necessary averments have been made in paragraphs nos. 17 to 19 of the election petition.

32. It is stated in para-17 of the election petition that the Returning Officer of the constituency issued the electoral roll/voter list on 05.01.2022 which was available in the office of the Returning Officer and was also uploaded on the website of the Election Commission. It is further pleaded in para-18 of the election petition that the Returning Officer extended the opportunity to those eligible persons whose names were not incorporated in the electoral roll/voter list dated 05.01.2022 for asserting their claims for inclusion of their names in the electoral roll/voter list for the purpose of polling on 07.03.2022. It is further stated that though the opportunity for addition in the names is permitted, the names cannot be deleted from the final electoral roll published on 05.01.2022. It is further stated that the election petitioner filed the documents relating to about 25,000 residents whose names were not in the electoral roll/voter list published on 05.01.2022 for adding their names to the electoral roll. The authorities sat tight over the matter, and on 04.03.2022 ante dated revised electoral roll/voter list dated 17.02.2022 was made available to the election agents of the election-petitioner.

33. The election petitioner in para-19 of the election petition further states that Booth Level Officer known as 'BLO' distributed voter information slip (BLO parchi) to the electors/voters of the aforesaid constituency. Those voters on the date of polling on 07.03.2022 reached the polling center for casting their votes, but they were not allowed to cast their votes on the ground that their names were not on the electoral roll/voter list. The election petitioner in this respect has given details of 113 voters in paragraph no.19 of the election petition.

34. It is submitted by Sri Shashi Nandan, learned Senior Counsel for respondent no.1 that the averments contained in paragraphs nos. 17 to 19 of the election petition are vague and do not state material facts. It is submitted that a vague statement in para-18 of the election petition has been made that the election- petitioner filed documents relating to about 25,000 residents of the constituency whose names did not find place in the electoral roll/voter list published on 05.01.2022 for adding their names in the elector list/voter list. It is submitted that neither the names of the persons nor any material supporting the fact that they were residents of the constituency have been pleaded in the election petition, and thus, the said averments are not sufficient to make out a cause of action. He further submits that it is stated in para-19 of the election petition that BLO has distributed the voter slip to the electors, but the name of the BLO who distributed the voter information slip to the voters has not been stated. He further submits that the election petitioner has stated the names of only 113 persons in para-19 of the election petition who were not allowed to cast their votes as their names did not find mentioned in the electoral roll/voter list. He submits that even if the allegation that 113 persons were not allowed to cast their votes is correct, that would not materially affect the election, since admittedly, respondent no.1 has won the election by 719 votes.

35. It is argued by Sri Anil Sharma, learned Senior Counsel for the election petitioner that once the final electoral roll is published according to Section 14(1)(b) of the Representation of People Act, 1950, it cannot be altered without following the procedure contemplated under Section 21 of the R.P. Act, 1950, and in the instant case, the procedure under Section 21 of the R.P. Act, 1950 has not been followed in altering the electoral roll/voter list by publishing an ante dated revised electoral roll/voter list dated 17.02.2022, therefore, the election held on the basis of said voter list is vitiated. He submits that the reading of paragraphs 17 to 19 of the election petition discloses that it contains material facts and particulars, therefore, the pleadings are complete and disclose a cause of action raising a triable issue with regard to the challenge of the election on the ground that the election was conducted by an illegal and ante- dated electoral roll, and this has materially affected the result of the election so far as it concerns the respondent no.1.

36. Perusal of paragraphs 17 to 19 of the election petition in support of the allegation that the election was held on the basis of an illegal electoral roll/voter list reveals that the pleadings in this regard are completely vague and lacks necessary material fact to constitute a cause of action raising a triable issue in the election petition on the said ground.

37. It is pertinent to note that the election petitioner has stated that he had submitted the documents relating to 25,000 residents of the constituency whose names had been left out from the electoral roll published on 05.01.2022, but names of such residents are not stated nor details of such residents have been disclosed in the election petition to demonstrate that they were residents of the constituency and were entitled to vote and non-inclusion of their names have materially affected the result of the election. The election petitioner has not stated the name of the authority to whom the election petitioner had submitted the documents for adding the names of these 25,000 residents to the electoral roll.

38. Further, basic and primary facts with regard to the allegation that an ante dated revised electoral roll dated 17.02.2022 was made available to the election agents of the petitioner on 04.03.2022 are lacking in the election petition inasmuch as there are no averments in the election petition as to what was the illegality committed in preparing the revised electoral roll/voter list dated 17.02.2022 and what is the basis to allege that voter list dt.17.02.2022 is ante- dated. Only a vague assertion in one line has been made in paragraph no.18 of the election petition that ante dated revised voter list dated 17.02.2022 was made available to the election agent of the petitioner and officials of the election. It is also relevant to point out that there is no pleading in the election petition as to how the procedure contemplated under Section 21 of the Representation of People Act, 1950 for omitting or adding the names of the voters in the electoral roll was not followed.

39. Further, the name of the BLO who distributed the information slip (BLO parchi) to the voters has not been disclosed nor details of persons whose names have been removed/deleted from the final electoral roll/voter list published on 17.01.2022 have been stated in the election petition.

40. It is also pertinent to note that the election petitioner has disclosed the name of only 113 persons, who according to the election petitioner were not allowed to cast their votes. If the said allegation is taken to be true, then how it materially affected the result of the election of respondent no.1 is not pleaded.

41. It is settled in law that if the election is challenged on the ground mentioned under Section 100(1)(d)(iv) of the R.P. Act, 1951, it is mandatory for the election petitioner to state that the result of the election in so far as the returned candidate is concerned, has been materially affected. In this respect, it would be apt to reproduce paragraphs nos. 10 to 12 of the judgment of the Apex Court in the case of Manani Lal Mandal Vs. Bishnu Deo Bhandari (2012) 3 SCC 314:-

"10. A reading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a returned candidate is alleged to be guilty of non-compliance of the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non-compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate could be declared void.

11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1)(d)(iv). For the election petitioner to succeed on such ground viz., Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in (1) Jabar Singh Vs. Genda Lal AIR 1964 SC 1200; (2) L.R. Shivaramagowda Vs. T.M. Chandrashekhar (1999) 1 SCC 666; & (3) Uma Ballav Rath Vs. Maheshwar Mohanty (1999) 3 SCC 357.

12. Although the impugned judgment runs into 30 pages, but unfortunately it does not reflect any consideration on the most vital aspect as to whether the non-disclosure of the information concerning the appellant's first wife and the dependent children born from that wedlock and their assets and liabilities has materially affected the result of the election insofar as it concerned the returned candidate. As a matter of fact, in the entire election petition there is no pleading at all that suppression of the information by the returned candidate in the affidavit filed along with the nomination papers with regard to his first wife and dependent children from her and non-disclosure of their assets and liabilities has materially affected the result of the election. There is no issue framed in this regard nor is there any evidence let in by the election petitioner. The High Court has also not formed any opinion on this aspect."

42. Thus, in view of the aforesaid discussion, this Court finds substance in the submission of the learned counsel for respondent no.1 that the election petition lacks material fact in respect of the allegation that the election was not conducted by a valid electoral roll/voter list.

43. Now, the next ground of attack on the election of respondent no.1 is that his nomination paper has been improperly accepted by the Returning Officer. It is averred that the Returning Officer while accepting the nomination paper of respondent no.1 overlooked the suppression of material facts about the criminal history, details of income tax return, and assets which respondent no.1 was required to submit in column-4 of Form-26. It is alleged that the necessary averments in this regard have been made in paragraphs 20 to 25 of the election petition, which is reproduced herein below:-

20. That under the undue influence of returned candidate, the officials of the election as well as poling party extended undue favour to the returned candidate and illegally worked for winning him. Nomination papers of returned candidate i.e. respondent no.1 has been illegally accepted by the Returning Officer, without examining and knowingly overlooked the material concealment of the criminal history, ITRs and assets of which a details are given in following paragraphs.

21. That on form-26 the respondent no.1 as per requirement of column 4, details of last 5 financial years Income Tax Return was required to show, but deliberately he mentioned only for the FY 2021-22 and rest of the last 4 financial years have been shown zero, the same tactics has been adopted while showing his wife, daughters and son's ITRs, which comes under the material concealment and suppression of material facts.

22. That it is further submitted here that the respondent no.1 Ramesh, deliberately concealed material facts while disclosing the criminal antecedent in column 5 of Form-26 and (1) the section 34, 307 I.P.C. and 7 Criminal Law Amendment Act, under which charge sheet has been filed in Case Crime No.696 of 2017, Police Station-Khuthan, District-Jaunpur and (2) In other cases in which charge sheet have been filed, Sections are not properly described and the respondent no.1 made manipulation in the criminal antecedents but which has wrongly accepted by the Returning Officer as the respondent no.1 and Returning Officer were hand in gloves.

23. That it is submitted further that respondent no.1 has made wrong disclosure and suppressed material facts while filing the 7 (kha) of Form-26, wherein he has not disclosed the area in acre of the property purchased in Karjat and Mangaon of State of Maharastra and further he has entered Zero in the column prescribed for giving the condition and date of purchase of self earned property. The respondent no.1 deliberately mentioned not known in the column of date of purchase and condition of self earned property.

24. That the nomination papers presented on 16.02.2022 by the respondent no.1, reflects that he has deliberately concealed the criminal antecedent and manipulated in the details of ITRs and assets (properties) while filing Form-26 A & B as such his nomination papers was illegally accepted therefore, result of the election materially effected.

25. That is it submitted further that the wife of returned candidate namely Smt. Neelam Singh contested the election for the post of Member, Zila Panchayat Jaunpur for Ward No.16 Block Khuthan in the local body election held in the month of April/May 2021, and while filed her nomination paper, disclosing the assets regarding holdings of agricultural land, mentioned (i) Gata No.69/3/20 admeasuring 1 acre 13 gunda, (ii) Gata No.33/1/A admeasuring 3 acre 11 gunda, situate at Mangaon and Karjat Maharastra. She had disclosed deposit of Rs.54,196/- in Model Cooperative Bank and Rs.65,627/- in SBI Wasi and Rs.50,000/- cash in hand along with declaration of one Scorpio and jewellaries worth Rs.5 lakhs.

Smt. Neelam Singh also declared herself owner of Flat No.202 IInd Floor Raj Apartment, Lucknow office market value is Rs.70 lakhs and further she is owner of another Flat No.1105 in Maharastra worth Rs.50 lakhs. The respondent no.1 knowingly concealed aforesaid assets and deposit and not disclosed value of property in rupees in his affidavit and deliberately shown Zero against the column of ITR and column of assets."

44. Learned counsel for respondent no.1 submitted that the election-petitioner in order to succeed on the ground of improper acceptance of the nomination paper of respondent no.1 has not only to prove that the Returning Officer improperly accepted the nomination paper of the respondent no.1, but also has to establish that improper acceptance of the nomination paper has materially affected the result of the election in so far as it concerns the respondent no.1. He submits that the election petition lacks pleadings to the effect that the improper acceptance of nomination paper of respondent no.1 has materially affected the result of the election in so far as it concerns the respondent no.1. Accordingly, it is submitted that in such view of the fact, the election petition is bereft of material fact in respect to the aforesaid allegation, and thus, no cause of action exists in the election petition raising the triable issue in this regard.

45. Learned Senior Counsel for respondent no.1 has sought to lay distinction between Section 100(1)(c) and Section 100(1)(d)(i) of the R.P. Act, 1951 by contending that in a case falling under Section 100(1)(c), once it is established that any nomination has been improperly rejected, the election of the returned candidate shall be declared to be void and the election-petitioner is not required to establish that improper rejection of nomination paper has materially affected the result of the election so far as it concerns the returned candidate whereas in a case falling under Section 100(1)(d)(i) of the R.P. Act, 1951, the petitioner has to plead material facts and particular that the nomination paper of the respondent no.1 has been improperly accepted and improper acceptance of nomination paper of returned candidate has materially affected the result of the election in so far as it concerns the returned candidate.

46. In support of his aforesaid contention, he has placed reliance upon paragraphs nos.10 & 11 of the judgment of the Apex Court in the case of Rajendra Kumar Meshram Vs. Vanshmani Prasad Verma and Another (2016) 10 SCC 715, which is reproduced herein-below:-

"10. Under Section 100(1)(d), an election is liable to be declared void on the ground of improper acceptance of a nomination if such improper acceptance of the nomination has materially affected the result of the election. This is in distinction to what is contained in Section 100(1)(c) i.e. improper rejection of a nomination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did not endeavor to go into the further question that would be required to be determined even if it is assumed that the appellant-returned candidate had not filed the electoral roll or a certified copy thereof and, therefore, had not complied with the mandatory provisions of Section 33(5) of the 1951 Act.

11. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further exercise, namely, to find out whether the improper acceptance of the nomination had materially affected the result of the election. This has not been done notwithstanding Issue 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e. Issue 6, naturally, it was not empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the nomination of the returned candidate was improper."

47. Learned counsel for the election petitioner submits that the necessary material facts in order to establish that the nomination paper of respondent no.1 has been improperly accepted by the Returning Officer have been detailed in the election petition. It is submitted that a candidate must furnish complete details in Form-26. It is submitted that Section 33-A was inserted by the Act 72 of 2022 with effect from 24.08.2002 in R.P. Act, 1951 which requires a candidate to provide additional information apart from the information required under Section 33 (1). It is submitted that the object for providing the said information has been elaborated by the Apex Court in catena of judgments that the voter has a fundamental right under Article 19(1)(a) of the Constitution of India to know criminal antecedents, income tax return, assets, etc. of the candidate to elect the right candidate and suppression of material facts in the affidavit filed along with Form-26 would result in rejection of the nomination of the candidate. Thus, in case the nomination of a returned candidate has been improperly accepted, that would materially affect the result of the election in so far as it concerns the returned candidate inasmuch as but for improper acceptance of the nomination paper of the returned candidate, he could not have contested and elected in the election.

48. Sri Anil Sharma, learned Senior Counsel has placed reliance upon the two judgments of the Apex Court wherein the history for inserting Section 33-A in R.P. Act, 1951 has been detailed. The first judgment is Kisan Shankar Katohore Vs. Arun Dattatray Sawant and Others (2014) 14 SCC 162. Paragraph no.40 of the said judgment is reproduced herein-below:-

"40. We have already reproduced above the relevant portions of judgments in Union of India Vs. Association for Democratic Reforms (2002) 5 SCC 294 and People's Union for Civil Liberties Vs. Union of India (2003) 4 SCC 399 and the guidelines issued by the Election Commission pursuant thereto. A conjoint and combined reading thereof clearly establishes that the main reason for issuing directions by this Court and guidelines by the Election Commission pursuant thereto is that the citizens have fundamental right under Article 19(1)(a) of the Constitution of India to know about the candidates contesting the elections and this is the primary reason that casts a solemn obligation on these candidates to furnish information regarding the criminal antecedents, educational qualifications and assets held by the candidate, his spouse and dependent children. It is on that basis that not only Election Commission has issued guidelines, but also prepared formats in which the affidavits are to be filed. As a fortiorari, it follows that if the required information as per the said format in respect of the assets of the candidate, his wife and dependent children is not given, it would amount to suppression/non-disclosure."

49. The judgment of the Apex Court in the case of Resurgence India Vs. Election Commission of India and Another (2014) 14 SCC 189 is also relevant in the facts of the present case. Paragraph nos.20 to 22 of the said judgment is reproduced herein-below:

"20. Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizen's right to know of the candidate who represents him in the Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires.

21. With this background, Section 33-A of the RP Act was enacted by Act 72 of 2002 with effect from 24.08.2002. Thus, the purpose of the Act 72 of 2002 was to effectuate the right contemplated in Association for Democratic Reforms (supra). However, the legislators did not incorporate all the suggestions as directed by this Court in the above case but for mandating all the candidates to disclose the criminal antecedents under Section 33A by filing an affidavit as prescribed along with the nomination paper filed under Section 33(1) of the RP Act so that the citizens must be aware of the criminal antecedents of the candidate before they can exercise their freedom of choice by casting of votes as guaranteed under the Constitution of India. As a result, at present, every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and educational qualifications.

22. Let us now test whether the filing of affidavit stating that the information given in the affidavit is correct but leaving the contents blank would fulfill the objective behind filing the same. The reply to this question is a clear denial. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India. The citizens are required to have the necessary information at the time of filing of the nomination paper in order to make a choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory."

50. In the case of Durai Muthuswami Vs. N. Nachiappan and Others (1973) 2 SCC 45, it was held that in the case of election to a single member constituency if there are more than two candidates and the nomination of one of the defeated candidates had been improperly accepted, the question might arise as to whether the result of the election of the returned candidate had been materially affected by such improper reception. In such a case, the question would arise as to what would have happened to the votes which had been cast in favour of the defeated candidate whose nomination had been improperly accepted if it had not been accepted. In that case, it would be necessary for the person challenging the election not merely to allege but also to prove that the result of the election had been materially affected by the improper acceptance of the nomination of the other defeated candidate. Unless he succeeds in proving that if the vote cast in favour of the candidate whose nomination had been improperly accepted would have gone in the favour of the election petitioner and he would have got a majority, he cannot succeed in his election petition. Section 100 (1)(d)(i) of R.P. Act, 1951 deals with such a contingency (see SCC pg.48-49 pr.3 ).

51. In the case of Madiraju Venkata Ramana Raju Vs. Peddireddigari Ramchandra Reddy and Others (2018) 14 SCC 1, the election of a returned candidate was challenged under Section 100 (1) (a) & (d) (i) of the R.P. Act, 1951 on the ground that he did not furnish correct details regarding the value of movable assets in the affidavit. The High Court dismissed the election petition holding that the election petition does not contain a concise statement of material facts that due to improper acceptance of the nomination paper of the returned candidate, the election of the returned candidate has been materially affected. The Apex Court set aside the judgment of the High Court by placing reliance upon the judgment of the Apex Court in the case of Durai Muthuswami (supra). Paragraph nos. 52, 53, 55, 57 of the said judgement is reproduced herein below:-

"52. The only other plea of respondent no.1 that needs examination is about the absence of averment in the election petition that because of improper acceptance of nomination form of respondent no.1, it has materially affected the election results of respondent no.1. Even this contention should not detain us in light of the exposition in the recent decision of this Court in Mairembam Prithviraj Vs. Pukhremsharatchandra Singh (2017) 2 SCC 487. For, in Durai Muthuswami Vs. N. Nachiappan (1973) 2 SCC 45, noticed in this judgment, it has been observed that in the case of election to a single member constituency, if there are more than 2 candidates and the nomination of one of the defeated candidates had been improperly accepted, a question might arise as to whether the result of the election of the returned candidate had been materially affected by such improper reception. That would not be so in the case of challenge to the election of the "returned candidate" himself on the ground of improper acceptance of his nomination.

53. In paragraph 23 of the judgment in M. Prithviraj (supra), after analysing the exposition in Durai Muthuswami (supra), the Court observed thus:

"23. It is clear from the above judgment in Durai Muthuswami that there is a difference between the improper acceptance of a nomination of a 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."

55. In Duni Chand Vs. State of H.P. (2014) 16 SCC 152, this Court was called upon to consider whether the nomination paper submitted by the appellant therein was improperly accepted by the Returning Officer. It observed that if the Returning Officer had rejected the nomination paper of the appellant therein at the time of scrutiny, the order of rejection would have been valid. As a result, the appellant could not have participated in the election process and there would have been no occasion for him to be elected. It would therefore, follow that improper acceptance of his nomination by the Returning Officer has inevitably materially affected his result of the election.

57. Our attention has also been invited by the learned counsel to L.R. Shivaramagowda Vs. T.M. Chandrashekar (1999) 1 SCC 666, with particular emphasis on paragraph 10 and 11, wherein the Court observed that in order to declare an election to be void under Section 100(1)(d)(iv) it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerns the returned candidate has been materially affected. In the present case, the election petition is in reference to the ground of improper acceptance of nomination form of respondent no.1 the returned candidate under Section 100(1)(d)(i). Thus, if that plea is accepted and the election of respondent no.1 is declared to be void, it would necessarily follow that the election result of the returned candidate has been materially affected."

52. In this respect, it would also be relevant to refer to the judgment of the Apex Court in the case of Mairembam Prithviraj alias Prithviraj Singh Vs. Pukhrem Sharatchandra Singh (2017) 2 SCC 487. Paragraph nos. 23 & 24 of the judgement is reproduced herein-below:-

"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 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 in so far 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.

24. The judgment of this Court in Durai Muthuswami (supra) was referred to in Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422 in which it was held as follows:

"21.The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that Section 100(1)(d) of the Act is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being materially affected by the alleged infirmity. (See:Durai Muthuswami v. N. Nachiappan [(1973) 2 SCC 45. In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected."

53. The aforesaid judgment postulates that where the election has been challenged on the ground of improper acceptance of the nomination paper of the returned candidate under Section 100 (1)(d)(i) of the R.P. Act, 1951, the election petitioner is not required to plead that the improper acceptance of nomination paper has materially affected the result of the election so far as it relates to returned candidate inasmuch as the improper acceptance of nomination paper of the returned candidate implies that the result of the election of the returned candidate had been materially affected for the reason that the returned candidate could not have contested the election and declared elected if his nomination paper had not been improperly accepted.

54. In the present case, the election petitioner has averred in the election petition that respondent no.1 has not given the details of five financial years of the income tax return as required in Column-4 of Form-26 as he has mentioned details of only Financial Year 2021-22, details of rest of the four Financial Years have been mentioned 'Zero'. It is also pleaded in paragraph 22 of the election petition that the petitioner has suppressed material fact in Form-26 that a criminal case under Sections 34, 307 I.P.C. & 7th Criminal Law Amendment Act has been lodged against him and a charge sheet has been filed in Case Crime No.696 of 2017, P.S. Khuthan, District Jaunpur.

55. If the pleadings in respect of improper acceptance of the nomination paper of the returned candidate in the election petition made in paragraphs nos.20 to 25 are read in the light of the aforesaid judgments of the Apex Court and also on consideration of the fact that the object of enactment of Section 33-A in the R.P. Act, 1951 is to meet the requirement of the fundamental right of the voter enshrined under Article 19(1) (A) of the Constitution of India so that the voter should know about the antecedents and details of the candidate whom he is going to elect and handover the interest of the people and also the constituency for which such candidate is contesting, this Court is of the view that the material fact constituting a cause of action to adjudicate the issue raised by the election-petitioner that election of respondent no.1 is vitiated by the improper acceptance of nomination papers of respondent no.1 has been pleaded in the election petition. In such view of the fact, the submission of the learned counsel for respondent no.1 is devoid of merit.

56. It is further submitted by Sri Shashi Nandan, learned Senior Counsel that the election petitioner alleges in the election petition that respondent no.1 committed corrupt practices. He submits that the expression 'corrupt practices' has been explained in Section 123 of the R.P. Act, 1951. He submits that the election petition does not contain any specific instance of corrupt practice having been committed by respondent no.1 or any of his agents. Accordingly, he submits that the election petition is bereft of the concise statement of material fact, and therefore, the same is barred by Section 83 read with Section 86 of the R.P. Act, 1951. It is further submitted that the allegation with regard to corrupt practices is not supported by any affidavit as contemplated under proviso to Section 83 (1) of the R.P. Act, 1951, and in such view of the fact, the allegations with regard to corrupt practices cannot be read and are liable to be ignored.

57. In order to buttress the submission that if the election is challenged on the ground of corrupt practices, the election petitioner must file an affidavit in the prescribed form as provided in the proviso to Section 83 of the R.P. Act, 1951, and in the instant case, it has not been done so, he has placed reliance upon the judgment of the Apex Court in the case of V.Narayanaswamy Vs. C.P. Thirunavukkarasu (2000) 2 SCC 294 wherein the Apex Court in paragraph 23 of the said judgement held as under:-

"23. It will be thus seen that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non- compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of duty of the court suo moto even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition."

58. Sri Anil Sharma, learned Senior Counsel for the election-petitioner does not dispute the aforesaid legal proposition and also concedes that there is non-compliance of the proviso to Section 83(1) of the R.P. Act, 1951. In such view of the fact, the allegations made in paragraphs 19, 20, 26, 27, & 33 of the election petition are liable to be ignored.

59. Now, coming to the last submission of Sri Shashi Nandan, learned Senior Counsel that the allegations made with regard to corrupt practices in the counting of votes in paragraphs 26 to 32 of the election petition do not state material facts including the particulars of corrupt practices adopted by the Returning Officer in counting of votes, therefore, the election petition does not disclose a cause of action so far as the allegation with regard to corrupt practices in the counting of votes is concerned. In this respect, it would be relevant to reproduce paragraphs 26 to 32 & 34 & 35 of the election petition:-

"26. That while counting took place, the Returning Officer and its officials performing the duties of counting of vote on 10.03.2022, adopted corrupt practice and it is found more votes in EVM, than record of polled votes given under Form 17C issued by the Presiding Officer. At polling booth no. 332 (Primary School Habibpur Western Part), total number of allocated voters on the booth 731 and total 386 votes polled as recorded in 17A of Voter Register. As per EVM record 386 votes were found.

Surprisingly while counting took place, it is found 608 votes were recorded in EVM utilized at Police Booth No. 332, out of which-

386 votes were counted in favour of respondent no.1 returned candidate &

107 vote counted in favour of the petitioner,

92 vote counted in favour of Indar Dev,

4 votes counted in favour of Parvez Alam,

2 votes counted in favour of Kapil Dev,

O vote countered in favour of Jitendra Kumar,

O vote countered in favour of Nayab Ahmad Khan,

7 vote countered in favour of Ramanuj,

O vote countered in favour of Ram Pratap,

1 vote countered in favour of Ram Sumer,

3 vote countered in favour of Vinod Kumar,

O vote countered in favour of Suresh Rajbhar,

0 vote countered in favour of Vinod and

6 vote countered in favour of Nota.

27. That it is very surprising that at polling station/Booth No. 332 total votes polled are 386 and vote found and counted in EVM are 608, which is a glaring example of committing corrupt practice in the election, there is no justification given by the Returning Officer, District Election Officer and Micro and Macro Observers regarding the 222 excess votes comes where from.

28. That petitioner is also bringing on records that EVM of Shahganj, Tehsil East polling Booth No. 236 was not counted but counting of votes shown in counting chart by Returning Officer and Election Commission of India,

29. That the counting conducted of 440 Polling Booths and the result declared in favour of returned candidate Ramesh, declaring him winner by margin of 719 votes.

30. That total 1265 postal ballot votes were counted, out of which-

Petitioner obtained 781 votes

Ramesh (returned candidate) obtained 253 votes

Indradev obtained 160 votes,

Parvez Alam obtained 6 votes,

Kapil Dev obtained 2 votes,

Jitendra Kumar obtained 0 vote,

Nayab Ahmad Khan obtained 1 votes,

Ramanuj obtained 5 votes,

Ram Pratap obtained 3 votes,

Ram Sumer obtained 0 vote

Vinod Kumar obtained 3 votes,

Suresh Raj Bhar obtained 0 vote

Vinod obtained 0 votes

Total 51 votes rejected.

Nota obtained 0 vote and no tender votes polled.

As per Final Result Sheet issued on Form-20 by Returning Officer, Constituency No.365 Shahganj,

the petitioner obtained 86514 votes

respondent no.1 obtained 87233 votes

Indar Dev obtained 48957 votes,

Parvez Alam obtained 1529 votes,

Kapil Dev obtained 857 votes,

Jitendra Kumar obtained 383 votes

Nayab Ahmad Khan obtained 8128 votes,

Ramanuj obtained 2551 votes,

Ram Pratap obtained 514 votes,

Ram Sumer obtained 775 votes,

Vinod Kumar obtained 783 votes,

Suresh Rajbhar obtained 626 votes,

Vinod obtained 427 votes,

Total valid votes 239277

Total 51 votes rejected

Nota 1643 votes

Total votes counted 240971

As per EVM counting-

Petitioner obtained 85733 votes

respondent no. 1 obtained 86980 votes

Indar Dev obtained 48797 votes

Parvez Alam obtained 1523 votes

Kapil Dev obtained 855 votes

Jitendra Kumar obtained 383 votes

Nayab Ahmad Khan obtained 8127 votes

Ramanuj obtained 2546 votes

Ram Pratap obtained 511 votes

Ram Sumer obtained 775 votes

Vinod Kumar obtained 780 votes

Suresh Rajbhar obtained 626 votes

Vinod obtained 427 votes

rejected 0 votes.

Nota 1643 votes

Tender vote 0

Total counted 239706 votes by EVM

31. That as per counting chart, table wise counting held for 440 polling booths in 32 rounds-

The petitioner obtained total 82542 votes

Returned candidate Ramesh obtained 84947 votes,

Indar Dev obtained 47995 votes

Parvez Alam obtained 1493 votes

Kapil Dev obtained 826 votes

Jitendra Kumar obtained 375 votes

Nayab Ahmad Khan obtained 7922 votes

Ramanuj obtained 2495 votes

Ram Pratap obtained 503 votes

Ram Sumer obtained 756 votes

Vinod Kumar obtained 768 votes

Suresh Rajbhar obtained 605 votes

Vinod obtained 414 votes

Nota obtained 1609 votes

Total counted votes- 233250

32. That from the perusal of final result sheet issued by Returning Officer Constituency No. 365 Shahganj on Form- 20, counting have been made and chart prepared for 444 polling station, whereas table wise chart made by Election Commission of India, showing the result of 440 polling booth/stations and thus votes of 4 polling stations are not counted.

33. ......

34. That the table wise counting chart, showing different figure of votes obtained by the candidates and the final result sheet issued by the Returning Officer is different, which vitiate the entire election proceedings, declared in favour of respondent no.1.

35. That though request was made by the petitioner for counting of VVPAT for booth no. 332, but the Returning Officer declined to count the VVPAT of Booth No. 332."

60. Perusal of paragraphs 26 & 27 of the election petition reveals that it has been stated by the election petitioner that the Returning Officer has adopted corrupt practices, but there are no averments in paragraphs 22 to 27 to the effect that corrupt practice has been committed by the Returning Officer with the consent of the returned candidate or his election agents nor does it disclose the name of the Returning Officer and officials who were on duty for counting of votes and adopted corrupt practices. If the challenge to the election under Section 100(1)(b) of the R.P. Act, 1951 is laid on the ground of corrupt practices, the election petitioner not only has to establish that any corrupt practice has been committed by a returned candidate or his election agent or by any other person, but he also has to establish that such corrupt practice has been committed with the consent of the returned candidate or his election agent.

61. So far as the allegation in the election petition that the final result sheet in Form-20 issued by the Returning Officer reveals that the chart was prepared for 444 polling stations whereas the table-wise chart prepared by the Election Commission of India shows the result of 440 booth/polling stations, thus, votes of four polling stations are not counted. A perusal of paragraph 32 of the election petition reflects that the election-petitioner has not disclosed the name of four polling stations whose votes are not counted by the Election Commission nor there is any averment in the said paragraph that by not counting the votes of four polling stations, the election of respondent no.1 has been materially affected.

62. It is also relevant to mention that the election petition also lacks pleadings to the effect that the election petitioner or his agents challenged the counting of votes in Form-20. Thus, this Court is of the view that the election petition lacks material facts and particulars also with regard to the challenge of the election of respondent no.1 on the ground of corrupt practices adopted by the Returning Officer or his officials in counting votes and in preparing Form-20. Thus, no triable issue is made out, and pleading in regard to said allegation is also liable to be ignored.

63. This Court has held above that the material facts and particulars have been pleaded in the election petition challeneging the election on the ground of improper acceptance of the nomination paper of respondent no.1 disclosing a cause of action and a triable issue under Section 100 (1)(d)(i) of the R.P. Act, 1951 that the election of respondent no.1 is vitiated by impoper acceptance of nomination form. Hence, there is compliance with Section 83(1)(a) & (b) of the R.P. Act, 1951, therefore, both the applications, i.e., Application No.6 of 2022 (under Order 7 Rule 11 of C.P.C.) & Application No.7 of 2022, (under Section 86(1) of the Representation of Peoples' Act, 1951) are dismissed without any order as to cost.

Order Date:-03.07.2023.

NS