This Court Has Heard Sri N.Ashwani ... vs Unknown
2023 Latest Caselaw 24 AP

         HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                        E.A.No.1 of 2022
                                  in
                       E.P.No.20 of 2019
O R D E R:

This Court has heard Sri N.Ashwani Kumar, learned

counsel for the petitioner and Sri A.Satya Prasad, learned

senior counsel for M/s. Sriman, representing the

respondents.

This application is filed to reject E.P.No.20 of 2019 by

Sri N.Ashwani Kumar, learned counsel for the election

petitioner on the following grounds:

(a) That the copy of the election petition served on the

petitioner did not contain an endorsement „True copy‟ under

the signature of the election petitioners and that therefore,

there is non-compliance with section 81 (3) of the

Representation of the Peoples Act, 1951 ( for short „the Act‟).

(b) The community and nativity certificate issued to the

petitioner in this application under the Andhra Pradesh

(Scheduled Castes, Scheduled Tribes and Backward Classes)

Regulation of Issue of Community Certificates Act, 1993 for

short „the 1993 Act‟) and that till the same is set aside under

the provisions of the said Act/its Rules, it continues to hold

the field. It is also submitted that this Court while trying the

election petition does not have the jurisdiction or the power to

decide on the caste status of the present petitioner and the

issue about the community certificate and its correctness is

beyond the scope of the power of this Court, while deciding

this case.

(c) That although the pleading is to the effect that the

Returning Officer had improperly accepted the nomination

paper, the petitioner has not pleaded that the election is

„materially affected‟ by the said acceptance.

(d) That material particulars are lacking in the application

and that it does not disclose a cause of action.

(e) That the verification made to the election petition is not in

accordance with law and that the petitioner has not stated

which facts are based on information. Hence, the election OP

contains averments which are baseless and imaginary.

It is therefore submitted that as there is non-compliance

of law and that as the petition averments do not show the

valid cause of action, this Court should exercise its power

under Order VII Rule 11 CPC., and dismiss the election OP at

the threshold itself.

Sri N.Ashwani Kumar, learned counsel for the petitioner

submitted a brief note and also relied upon the following 7

judgments:

1. Dr.Shipra (Smt) and others v. Shantilal Khoiwal and others1

2. Rajendra Pratap Bhanj Deo v. Regu Mahesh and others2

3. Durga Singh v. M.Lakshmi Yadav and others3

4. Hari Shanker Jain v. Sonia Gandhi4

5. V.Narayanaswamy v. C.P.Thirunavukkarasu5

6. Azhar Hussain v. Rajiv Gandhi6

7. Ram Sukh v. Dinesh Aggarwal7

In reply to this, Sri A.Satya Prasad, learned senior

counsel submits that if the entire application filed is read as a

1 (1996) 5 SCC 181

2 2003 (2) ALD 304

3 2003 (4) ALD 604

4 (2001) 8 SCC 233

5 (2000) 2 SCC 294

6 1986 Supp SCC 315

7 (2009) 10 SCC 541

whole, it shows that there is a cause of action for filing the

application. It is also asserted that the petition is only filed to

delay and defeat the trial of the matter and that more than

adequate pleadings are there to support the case. It is also

argued that the High Court has the power and authority to

determine the caste status of the petitioner since the High

Court is empowered under Section 100 of the Act to

determine if the candidate is „qualified‟ to contest an election.

It is also submitted that the issues about the verification etc.,

that are raised are not correct and the distinction between

material facts and particulars should be noted. It is

reiterated that the material facts are pleaded with certainty

and that if some particulars are not mentioned, they can

always be supplanted with the permission of the Court. This

is an alternative submission made.

Sri A.Satya Prasad, learned counsel for the respondent

in the interlocutory application (main petitioner in the main

OP) relied upon the following judgments:

      1. Church       of   Christ    Charitable     Trust        and
         Educational       charitable   Society,   Rep.,    by   its

Chairman v. Ponniamman Educational Trust8

2. P.V.Guru Raj Reddy v. P.Neeradha Reddy9

3. Kuldeep Singh Pathania v. Bikram Singh Jaryal10

4. Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara11

5. Sobha Hymavathi Devi v. Setti Gangadhara Swamy12

6. Nimmakka Jaya Raju v. Satrucharla Vijaya Rama Raju13

7. Satrucharla Vijaya Rama Raju v. Nimmakka Jaya Raju14

8. Peedika Rajanna Dora v. Rajendra Pratap Bhanj Deo15

8 (2012) 8 SCC 706

9 (2015) 8 SCC 331

10 (2017) 5 SCC 345

11 (2019) 10 SCC 226

12 (2005) 2 SCC 244

13 2004 (4) ALT 14

14 (2006) 1 SCC 212

15 2006 (5) ALT 289

9. Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani16

10. Muraka Radhey Shyam Ram Kumar v. Roop Singh Rathore17

This Court has heard extensive arguments of both the

learned counsels who took great pains to argue the matter.

The law on the subject is very well settled. This Court

while trying an Election Petition has the power under Order

VII Rule 11 CPC., to dismiss a case when it does not show a

cause of action. That Order VII CPC., would apply to trial all

cases under the Act is not in doubt. Therefore, against this

backdrop, this Court is examining the election OP that has

been filed.

As per the settled law, the totality of the pleadings should

be taken into consideration for determining whether the

cause of action is disclosed or not. The crux of the issue

raised in the election O.P. as it is filed is that the

respondent/petitioner herein is not a member of the

Scheduled Tribe community and in particular, the

„Kondadora‟ community. It has stated categorically that the

AIR 1955 SC 610 17 AIR 1964 SC 1545

respondent/petitioner herein is not qualified to contest in the

reserved seat namely, Kurupam (ST) Constituency Legislative

Seat in the State of Andhra Pradesh, which is admittedly a

reserved seat. Paras 5 and 6 clearly state this fact. In para7,

it is mentioned that the petitioner No.2 filed objections at the

time of nomination stating that the respondent/petitioner

herein is not a member of notified Schedule Tribe. This

objection has been rejected and the nomination of the

respondent/petitioner herein is accepted albeit improperly.

In the Election OP., the migration of family from Srikakulam

to West Godavari is mentioned in para 7 and it is stated that

the Kondadora Tribe only resides in Vijayanagaram,

Visakhapatnam and Srikakulam Districts. It is stated that

the certificate showing that she is a member of the Kondadora

Tribe from Buttaigudem Mandal, West Godavari is an invalid

certificate. Certain facts and other documentary evidence are

also pleaded in paras 7 and 8.

Extensive arguments were advanced by Sri N.Aswani

Kumar about the lack of particulars. However, section 83 of

the Act, states the following:

"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 ...."

The distinction between the material facts and material

particulars is visible from an ex facie reading of the contents

of the section itself. In para 13 of the judgment reported in

Ram Sukh's case (7 supra), the following is said by the

Hon‟ble Supreme Court on this very point:

13. The phrase "material facts" has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, "material facts" are facts upon which the plaintiff's cause of action or defendant's defence depends. (See: Mahadeorao Sukaji Shivankar v. Ramaratan Bapu and Ors.

MANU/SC/0627/2004 : (2004) 7 SCC 181). Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are "material facts". Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what 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." (emphasis supplied)

The distinction between the facts and particulars is also

mentioned in para 15 and 16 of this judgment. It is clearly

held that material facts as stated in 83 (1) (a) of the Act are

the basic and primary facts which have to be set out by the

petitioner herein to prove her case. Particulars on the other

hand as per the Hon‟ble Supreme Court are details in support

of the material facts. Material facts provide the basic

foundation on which the edifice of the election petition is built

and particulars are to be stated to ensure that the opposite

party is not taken by surprise. This is the settled law on

the subject.

Against this backdrop, if the present application is

examined, it is clear that the election petition is filed on the

ground that the respondent/petitioner herein is not a member

of the Schedule Tribe community. It is also stated that the

certificate issued in West Godavari District is not a valid

certificate. It is stated that the respondent/petitioner herein

is not a member of the Scheduled Tribe at all and that the

Kondadora Tribes only reside in Vijayanagaram,

Visakhapatnam and Srikakulam Districts. They are not

available in West Godavari and therefore, the certificate

issued from Buttaigudem Mandal is invalid. In the opinion of

this Court, the contents of the petition meet the rigor of

section 83(1) (a) of the Act.

As far as particulars are concerned, they can always be

supplanted with the permission of the Court. This is visible

from a reading of section 86(5) of the Act itself. It is also

important to note that the furnishing of material particulars

and more precisely full particulars is only necessary in case of

corrupt practice. Where the petitioner alleges in corrupt

practice, the petition has to set out the full particulars of the

same and is also be accompanied by an affidavit in support of

the allegation of such corrupt practice.

Rejection of plaint is an extraordinary remedy which

empowers this Court to reject the case at the threshold. As

per the settled law on the subject, including the judgment

reported in P.V.Guru Raj Reddy's case (9 supra), the

conditions prescribed under Order VII Rule 11 CPC., should

be completely present so that the power under Order VII Rule

11 CPC., should be exercised. Para 5 of this judgment which

reiterates the settled law is reproduced hereunder:

5. Rejection of the plaint Under Order VII Rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power Under Order VII Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power Under Order VII Rule 11, the stand of the Defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."

The case of Shaukathussain Mohammed Patel (11

supra) reiterates the same.

In the opinion of this Court, the respondents herein

have pleaded the basic facts to support their case and have

urged in more than one place in the election petition that the

petitioner herein is not qualified to contest the election as she

is not a member of the Scheduled Tribe or the Kondadora

community.

In the opinion of this Court, what is necessary under

Section 83(1) (a) of the Act is a concise statement of material

facts. Therefore, this Court holds that the plaint cannot be

summarily rejected at the very threshold. Even the judgment

cited by the learned counsel for the petitioner in the case of

V.Narayanaswamy (5 supra) notices the distinction between

material facts and material particulars. Where corrupt

practice is alleged, the need and necessity for giving clear

particulars or material particulars is emphasized. In the

opinion of this Court, the petitioner has pleaded the concise

statement of fact. Therefore, on a reading of the entire

election petition as a whole, this Court concludes that the

drastic power of rejection under Order VII Rule 11 CPC.,

cannot be exercised in favour of the petitioner; as the petition

in the opinion of this Court; discloses a „cause of action‟.

The second major issue that is urged and argued at

length by both the learned counsels is about the competency

of this Court to decide on the validity or otherwise of the caste

status of the petitioner in this interlocutory application.

Learned counsel for the petitioner essentially relied upon the

two judgments of this combined high Court reported in

Rajendra Pratap Bhanj Deo's case(2 supra) which was

followed in the case of Durga Singh (3 supra). Basing on

these judgments, learned counsel argued that a Caste

Certificate issued under the 1993 Act can only be set aside

under the provisions of the said Act/its Rules and that the

High Court does not have the power to decide this issue of

caste/caste certificate. This is the crux of the submission of

the learned counsel for the petitioner.

A closer examination of the case in Rajendra Pratap

Bhanj Deo's case(2 supra) shows that by the time the matter

was being heard, an enquiry was already been conducted

under the 1993 Act about the caste status of the party. In

para 26 of the reported judgment, the learned single Judge

noticed that since an enquiry under the relevant Act is being

conducted, if an independent enquiry into the validity of the

caste certificate is carried on by the High Court in the election

petition, it would result in parallel exercise of power.

Similarly, in para 27, it was held that since this authority

under the State Act is enquiring into the matter propriety and

harmonious construction, demand that the High Court

should give away for the machinery provided under the Act.

This was followed in the judgment of Durga Singh (3 supra).

This Court notices that in para 45 of the judgment reported in

M. Thippe Swamy v. L. Lalitha Kumari and Ors.18,

another learned Judge took the contrary view. However, this

Court notices that the learned senior counsel appearing for

the respondents relied upon the judgment in the case of

Sobha Hymavathi Devi (12 supra), wherein it was held as

follows in para 11:

"11. What remains is the argument based on the certificates allegedly issued under The Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993. The High Court has not accepted the certificates as binding for the reason that the evidence showed that the certificates were issued based on the influence exercised by the appellant as a member of the Legislative Assembly, one after another, immediately on an application being made and without any due or proper enquiry. We are impressed by the reasons given by the High Court for not acting on these certificates. That apart a reference to Section 3 of the Act would indicate that a certificate thereunder, insofar as it relates to elections, is confined in its validity to elections to local authorities and co-operative institutions. It does not embrace an

18 2006 (6) ALD 720

election to the Legislative Assembly or to the Parliament. Therefore, in any view of the matter, it cannot be said that the High Court exercising jurisdiction under The Representation of The People Act in an Election Petition is precluded from going into the question of status of a candidate or proceeding to make an independent inquiry into that question in spite of the production of a certificate under the Act. At best such a certificate could be used in evidence and its evidentiary value will have to be assessed in the light of the other evidence let in, in an Election Petition. Therefore, nothing turns on the factum of a certificate being issued by the concerned authority under the Act of 1993. We are also satisfied as the High Court was satisfied, that no proper inquiry preceded the issuance of such a certificate and such a certificate was issued merely on the say so of the appellant. We have, therefore, no hesitation in overruling this argument raised on behalf of the appellant."

Therefore, in view of this clear and categorical

pronouncement of law by the Hon‟ble Supreme Court while

considering the 1993 Act itself, this Court is of the opinion

that the judgments of the learned single Judges of this Court

relied on by the learned counsel for the petitioner are no

longer good law.

Learned counsel also relied upon another judgment in

Nimmakka Jaya Raju (13 supra).. Against this judgment,

the parties approached Hon‟ble Supreme Court and the final

order of the Hon‟ble Supreme Court is reported in

Satrucharla Vijaya Rama Raju (14 supra). In para 4, the

Hon‟ble Supreme Court noted the following:

".............Though, he faintly raised the contention that the issue of the certificate under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 was conclusive and binding on the proceedings under the Representation of the People Act, 1951, he did not seriously pursue that contention, obviously because of the fact that the certificate issued under that Act served a different purpose and could not stand in the way of an election petition filed under the Representation of the People Act, 1951 being tried in accordance with law by the High Court..........."

Even if this is considered as an obiter from the Hon‟ble

Supreme Court of India, it is still binding on this Court

(Peerless General Finance & Investment Co. Ltd., v. CIT19

and also has persuasive value The Oriental Insurance

Company Limited v. Meena Variyal and Ors.20). The

19 (2020) 18 SCC 625

20 (2007) 5 SCC 428

Hon‟ble Supreme Court clearly held that the learned counsel

did not pursue the contention about the 1993 Act because he

was aware that his contention could not stand in the way of

an election petition filed under the Act.

This High Court is also acting as a Court of original

jurisdiction under the Act, and has been empowered to try

cases under the said Act. It is an extension of the original

jurisdiction of the High Court and not a special jurisdiction

conferred (Hari Shanker Jain (4 supra). To contend that

this Court while exercising its power does not have the

jurisdiction to decide on the validity of a caste certificate

which may have a bearing on the issues raised in the election

petition and that it should await a decision on the issue by an

„authority‟ under the 1993 Act is not a correct submission in

this Courts opinion.

One of the judgments cited by the learned counsel for

the petitioner is the judgment in Hari Shanker Jain (4

supra). Para 8 of this judgment is as follows:

"8. It is clear from a conspectus of the above said provisions that jurisdiction to try an election petition has been conferred on the High Court. The grounds for declaring an election to be void must conform to the

requirement of Section 100 and the operative part of the order of the High Court must conform to the requirement of Sections 98 and 99 of RPA, 1951. The vires of any law may be put in issue by either party to an election petition before the High Court and the High Court can adjudicate upon such an issue if it becomes necessary to do so for the purpose of declaring an election to be void under Section 100 and for the purpose of making an order in conformity with Section 98 and 99 of RPA, 1951. The only restriction on the power of the High Court, as spelled out by clause (a) of Article 329 of the Constitution, is that the validity of any law relating to the delimitation of constituency or allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, cannot be called in question and hence cannot be so adjudged. A judge of the High Court can, therefore, while hearing an election petition, adjudicate upon the validity of any statutory provision subject to two limitations: (i) that it must be necessary to go into that question for the purpose of trying an election petition on any one or more of the ground enumerated in Section 100 and for the purpose of granting any one or more of the reliefs under Sections 98 and 99 of the Act, and (ii) as specific case for going into the validity or vires of any law is made out on the pleadings raised in the election petition."

In this case, the validity of candidate‟s citizenship and

thereafter the right to contest has been decided. In para 20,

after considering the provisions of the citizenship Act, the

following has been held:

20. Thus, looking at the scheme of the Citizenship Act, as also the judicial opinion which has prevailed ever since the enactment of Citizenship Act, 1955, we are unhesitatingly of the opinion that in spite of a certificate of registration under Section 5(1)(c) of the Citizenship Act, 1955 having been granted to a person and in spite of his having been enrolled in the voters list, the question whether he is a citizen of India and hence qualified for, or disqualified from, contesting an election can be raised before and tried by the High Court hearing an election petition, provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations.

In the opinion of this Court, in view of this clear position

of law, the contention that this Court under the Act cannot go

into the validity of the caste certificate is absolutely untenable

and contrary to law. As per the Hon‟ble Supreme Court, if

the validity or vires of a law can be put an issue before the

High Court and that issue becomes necessary for decision or

for a declaration under section 100 of the Act, this Court can

decide the same. In view of this law, this Court is of the

opinion that it is eminently empowered to decide the caste

status of the 1st respondent in the Election OP and if the said

averment is proved on the basis of the evidence, necessary

orders can be passed.

The central issue in this case is whether on the date of

election, a returned candidate is „qualified‟ to contest the seat

by virtue of her caste as the seat is a „reserved seat‟.

Therefore, the arguments of the learned counsel for the

petitioner are over ruled on this aspect and it is held that this

Court has power and authority to determine the issue of the

validity of the caste certificate/caste status etc., of the present

petitioner/respondent in the main OP.

The next issue raised is about the matter of verification

and whether it vitiates and empowers this Court to reject the

entire case under Order VII Rule 11 CPC. The verification is

to the effect that the contents of paras 3, 4, 5 to 7 and 10 are

true and correct and the information in paras 6, 8 and 9 are

based upon legal advice.

Learned counsel for the petitioner argued that since

verification is contrary to law, the case should be dismissed

under Order VII Rule 11 CPC. Learned senior counsel relied

upon a judgment of 5 judges of Hon‟ble Supreme Court

reported in Muraka Radhey Shyam Ram Kumar (17 supra).

The Hon‟ble Supreme Court clearly held that the defect in

verification is a matter which comes in clause (c) of section

83(1) of the Act and that this defect can be removed in

accordance with the principles of Code of Civil Procedure.

The Hon‟ble Supreme Court held that this is not a defect

which is fatal and would affect the maintainability of the writ

petition. To the same effect is another judgment reported in

Bhikaji Keshao Joshi (16 supra); again a five Judge Bench

of the Hon‟ble Supreme Court held that this is a curable

defect. In the present case, the „crux‟ of the issue raised is

about the caste status of the respondent in the main

OP/present petitioner. The present petitioner is thus aware

of the issue involved. The averments in the paragraphs

dealing with this are based on records and knowledge as per

the verification also.

The next objection raised is that the copy of the

application served upon the petitioner did not state that it is a

true copy of the petition filed. Along with E.A.No.1 of 2022,

the petitioner has not filed the served copy to enable this

Court to appreciate if endorsement is mentioned in the copy

or not. Apart from this, this Court is of the opinion that the

entire purpose of verification and stating true copy is to

ensure that the opposite party is not taken up by surprise

and that what is served on the petitioner is an accurate true

copy of the petition filed in Court. In the judgment of the

Hon‟ble Supreme Court in Ch. Subbarao v. Member,

Election Tribunal, Hyderabad21, it clearly held that if there

is substantial compliance with the requirement of 81

clause(3) of the Act, the election petition cannot be dismissed

under section 90(3) of the Act. As can be seen from the

averments in E.A.No.1 of 2022 that the copy of the election

petition was served on the petitioner, but it does not mention

the words „true copy‟ under the signature of the election

petitioners. In the opinion of this Court since the main

petitioners have signed on the copies, there is sufficient

compliance with the law as the petitioners have signed on the

copy meant for service. The dismissal of the main OP on this

ground is thus not warranted.

Lastly, it is stated that the petitioner has not pleaded

about the election being materially affected. As mentioned

earlier the main petitioners have pleaded in para 8 that the

nomination was improperly accepted and the result of the

election has been „materially affected‟. The adequacy of this

pleading is left open and the mere fact that Section 100 (1) (a)

AIR 1964 SC 1027

is relied on in the heading and not section 100 (1)(d)(i) is not

a ground enough to reject the petition at the threshold. Mere

quoting of a wrong provision of law is not enough to reject a

petition.

Considering all of the above, this Court is of the opinion

that there are no merits in the E.A.No.1 of 2022 and

accordingly, the same is dismissed.

The opinions expressed in this order are for the purpose

of determining the issues raised in this application only and

are not a finding on the inherent merits of the matter. The

correctness or otherwise of the caste certificate and the caste

status of the petitioner etc. are still open to be decided in the

course of deciding the main Election O.P.

________________________ D.V.S.S.SOMAYAJULU,J Date: 03.01.2023 KLP