Bombay High Court
Md. Nafis S/O Shifat Khan vs The Election Commission Of India ... on 26 February, 2021
Bench: A.S. Chandurkar
CAO753.20 & 12.21.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CIVIL APPLICATION(O) NOS.753/2020 AND 12/2021
in ELECTION PETITION NO.12/2019
Md. Nafis s/o Shifat Khan
Vs.
The Election Commission of India through Chief Election
Commissioner and others.
------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri Sunil V. Manohar, Senior Advocate with Shri D.V.Chauhan, Advocate for applicant/
respondent no.4.
Shri S.V. Purohit, Advocate for non applicant/petitioner.
Shri Neeja Choube, Advocate for non applicant/respondent no.1.
Mrs. Ketki Joshi, Government Pleader for non applicant/respondent no.2.
Shri N.C.Phadnis, Advocate for non applicant /respondent no.3.
Ms. N.P. Singhania, Advocate for non applicant /respondent no.16.
CORAM :- A.S.CHANDURKAR, J.
Date on which the arguments were heard : 05.02.2021
Date on which the order is passed : 26.02.2021
The election of the returned candidate-respondent no.4 in the
general elections to the Lok Sabha from Constituency No.10-Nagpur has
been challenged by the petitioner who is a voter from the said constituency.
The election has been challenged under the provisions of Section 100 (1)
(b), 100 (1) (d) (i), (ii) and (iv) of the Representation of the People Act,
1951 (for short, 'the Act of 1951'). It is also prayed that it be declared that
the election of the returned candidate is null and void. Further relief that
the respondent no.5 be declared elected is also prayed for.
2. The returned candidate has moved Civil Application No.753/2020
(Exhibit 18) under the provisions of Order VI Rule 16 of the Code of Civil
Procedure, 1908 (for short, the Code) for striking out the pleadings in the
election petition which according to the returned candidate are unnecessary,
vexatious, scandalous, frivolous and are intended to prejudice as well as
delay the trial of the election petition. The returned candidate has also filed
Civil Application No.12/2021 (Exhibit 19) under the provisions of Order VII
Rule 11 of the Code read with Section 86 of the Act of 1951 seeking
rejection of the election petition for want of cause of action. Replies have
been filed by the election petitioner opposing the aforesaid civil
applications. Both these applications are being decided by this common
order.
3. In support of the applications filed under the provisions of Order VI
Rule 16 and Order VII Rule 11 of the Code, the learned Senior Advocate for
the returned candidate referred to the pleadings in the election petition.
After doing so it was submitted that the averments in paragraph 7 as a
whole did not disclose any triable issue being raised for adjudication. The
election petitioner was in fact seeking answers to various questions posed in
the said paragraph. Specific material facts that could constitute a cause of
action to challenge the election of the returned candidate were
conspicuously missing. It could be said that the election petitioner was
seeking a roving enquiry into various aspects about the family affairs of the
returned candidate. This was not permissible and unless the election
petitioner came up with a specific case to indicate violation of any of the
provisions of the Act of 1951, the pleadings in the election petition were
unnecessary besides being scandalous, vexatious and amounted to abuse of
the process of the Court. Even the assertions with regard to the income-tax
returns of the returned candidate were without any substance as there was
no assertion that in the affidavit filed along with the nomination form the
information supplied was not in accordance with the income-tax returns
filed by the returned candidate. Only on the basis of surmises and
conjectures it was alleged by the election petitioner that the affidavit filed by
the returned candidate was false. So was the case with regard to alleged
income from the turmeric boiler regarding which vague allegations were
made. A detailed reference to the grounds on which the deletion of the
pleadings in the election petition has been prayed for would be made while
dealing with the relevant paragraphs hereinafter. Suffice it to say that
according to the learned Senior Advocate since no triable issue arose on the
basis of the pleadings in the election petition, there was no reason to
proceed further with the trial. The pleadings not giving rise to any cause of
action were liable to be deleted and after that exercise if nothing was found
to be further adjudicated, the election petition itself was liable to be
summarily rejected under the provisions of Order VII Rule 11(a) of the
Code. In support of his submissions the learned Senior Advocate placed
reliance on the following decisions :
1) Krishnamoorthy Vs. Sivakumar and others (2015) 3 SCC 467
2) Dhartipakar Madan Lal Agarwal Vs. Shri Rajiv Gandhi.
AIR 1987 SC 1577.
3) Pannalal S.S. Vs. Hitendra Vishnu Thakur. (1996) 4 Bom CR 74.
4) Shambhu Prasad Sharma Vs. Charandas Mahant and others,
(2012) 11 SCC 390.
5) Kisan Shankar Kathore Vs. Arun Dattatray Sawant and others.
(2014) 14 SCC 162.
6) Kamalnath Vs. Sudesh Verma (2002) 2 SCC 410.
7) Gajanan Krishnaji Bapat and another Vs. Dattaji Raghobaji
Meghe and ors. (1995) 5 SCC 347.
8) Daulat Ram Chauhan Vs. Anand Sharma AIR 1984 SC 621.
9) L.R.Shivaramagowda and ors. Vs. T.M.Chandrashekar(dead) by
LRs and ors. (1999) 1 SCC 666.
10) Ganesh Dadu Shendge Vs.Dilip Dnyandeo Kamble.
2016 SCC online Bom 3577.
11) Jitu Patnaik Vs. Sanatan Mohakud and ors. (2012) 4 SCC 194.
12) Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar.
(2009) 9 SCC 310.
13) Ram Sukh Vs. Dinesh Aggarwal (2009) 10 SCC 541.
14) Vejhurani Thakurdas Jhamandas Vs. Sabir Shaikh.
1996(2) Mh.L.J.291.
15) Santosh Yadav Vs. Narender Singh (2002) 1 SCC 160.
16) Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari.
(2014) 5 SCC 312.
17) Manohar @ Sagar s/o Pundlik Dabrase Vs. Election
Commission of India,New Delhi and others. 2020 (3) Mh.L.J.72.
18) Bita w/o Ghanshyam Ramteke Vs. Nanaji Sitaram Shamkule.
2010 (5) Mh L.J.707.
19) Ravinder Singh Vs. Janmeja Singh and others
(2000) 2 SCC 191.
4. Opposing the aforesaid submissions the learned counsel for the
election petitioner submitted that the election petition as a whole had to be
read which would indicate the existence of a cause of action along with the
material facts giving rise to triable issues. What was important was the
substance in the pleadings and not the form thereof. The Court could not
adopt a hyper-technical approach while adjudicating the prayers in the
applications in question. The basic pleadings clearly disclosed material facts
as pleaded and therefore it was necessary that the election petition should
proceed for trial. The learned counsel referred to the averments in the
election petition to justify the existence of material facts and urged that the
pleadings in the election petition were not liable to be struck off as prayed
for by the returned candidate. Reference to contentions with regard to the
specific averments in the election petition shall be made when the
averments are examined hereinafter. To substantiate his contentions, the
learned counsel for the election petitioner placed reliance on the following
decisions :
1. Dahiben Vs. Arvindbhai Kalyanji Bhanusali(Gajra) dead through
LRs and others. (2020) 7 SCC 366.
2. Shaktibhog Food Industries Ltd. Vs. Central Bank of India and
anr. 2020(5) Mh.L.J.1
3. Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and ors.
(1994) 2 SCC 392.
4. V.S.Achuthanandan Vs. P.J.Francis and another
(1999) 3 SCC 737.
5. Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and ors.
(2012) 7 SCC 788.
6. Madiraju Venkata Ramana Raju Vs. Peddireddigari
Ramachandra Reddy & ors. (2018) 14 SCC 1.
7. Vatal Nagraj Vs. R.Dayanand Sagar AIR 1975 SC 349.
8. Resurgence India Vs. Election Commission of India and anr.
(2014) 14 SCC 189.
9. Lok Prahari through its General Secretary S.N.Shukla Vs. Union
of India and ors. (2018) 4 SCC 699
5. Before embarking upon the adjudication of the applications in
question it is necessary to keep mind to the following observations of the
Hon'ble Supreme Court in paragraph 26 of its decision in Madiraju Venkata
Ramana Raju Vs. Peddireddigari Ramachandra Reddy and others (2018) 14
SCC 1 :
"26. Indeed, if the defendant moves two separate applications
at the same time, as in this case, it would be open to the Court
in a given case to consider both the applications together or
independent of each other. If the Court decides to hear the
application under Order VII Rule 11 in the first instance, the
Court would be obliged to consider the plaint as filed as a
whole. But if the Court decides to proceed with the
application under Order VI Rule 16 for striking out the
pleadings before consideration of the application under Order
VII Rule 11 for rejection of the plaint, on allowing the former
application after striking out the relevant pleadings then the
Court must consider the remainder pleadings of the plaint in
reference to the postulates of Order VII Rule 11 for
determining whether the plaint (after striking out pleadings )
deserves to be rejected in limine."
6. Following the latter course, it would be necessary to first take into
consideration the application moved by the returned candidate under the
provisions of Order VI Rule 16 of the Code. Reference would be made first
to the relevant pleadings in the election petition, thereafter the grounds on
which the returned candidate seeks those pleadings to be struck off and the
consideration of the same.
7. While considering the prayer for striking out pleadings under the
provisions of Order VI Rule 16 of the Code, it would be beneficial to refer to
the instructive decisions of the Hon'ble Supreme Court on this subject.
Relevance of material facts and full particulars giving rise to cause of
action in an election petition is of basic importance. In Hardwari Lal Vs.
Kanwal Singh AIR 1972 SC 515, it has been observed in paragraph 19
as under :
"19. The requirements in an election petition as to material
facts and the consequences of lack of such allegation of
material facts came up for consideration in this Court in the
recent decision in Samant N. Balakrishnan V George
Fernandes, (1969) 3 SCR 603 =(AIR 1969 SC 1201). In that
case reference was made to Sections 81, 83 and 86 of the Act
as the procedure provisions of election petition. Section 81
deals with presentation of petitions. Section 83 deals with
contents of petitions. Section 86 deals with trial of petitions.
Hidayatullah,C.J. speaking for the Court laid down these
propositions. First, Section 83 of the Act is mandatory and
requires first a concise statement of material facts and then
requires the fullest possible particulars. Second, omission of a
single material fact, leads to an incomplete cause of action
and the statement of claim becomes bad. Third, the function
of particulars is to present in full a picture of the cause of
action to make the opposite party understand the case he will
have to meet. Fourth, material facts and particulars are
distinct matters. Material facts will mention statements of
fact and particulars will set out the names of persons with the
date, time and place. Fifth, material facts will show the
ground of corrupt practice and the complete cause of action
and the particulars will give the necessary information to
present a full picture of the cause of action. Sixth, in stating
the material facts it will not do merely to quote words of the
section because then the efficacy of the material facts will be
lost. The fact which constitutes a corrupt practice must be
stated and the fact must be correlated to one of the heads of
corrupt practice. Seventh, an election petition without the
material facts relating to a corrupt practice is no election
petition at all. A petition which merely cites the sections
cannot be said to disclose a cause of action where the
allegation is the obtaining or procuring of assistance unless
the exact type and form of assistance and the person from
whom it is sought and the manner in which the assistance is
to further the prospects of the election are alleged as
statements of facts."
In Roop Lal Sathi Vs. Nachhattar Singh Gill (1982) 3 SCC 487 , it has been
held that the words "material facts" are the facts that are necessary to
formulate a complete cause of action and the same are to be stated. In
paragraph 26 of the said decision it has been observed as under :
"26........
Thus, the word 'material' in material facts under Section 83 of
the Act means facts necessary for the purpose of formulating a
complete cause of action; and if any one 'material' fact is
omitted, the statement or plaint is bad; it is liable to be struck
out. The function of 'particulars' is quite different, the use of
particulars is intended to meet a further and quite separate
requirement of pleading imposed in fairness and justice to the
returned candidate. Their function is to fill in the picture of
the election petitioner's cause of action with information
sufficiently detailed to put the returned candidate on his
guard as to the case he has to meet and to enable him to
prepare for trial in a case where his election is challenged on
the ground of any corrupt practice."
In Ajay Arjun Singh Vs. Sharadendu Tiwari and others, AIR 2016 SC 4087
the expressions occurring under the provisions of Order VI Rule 16(1) of
the Code have been explained. In paragraph 5 thereof it has been held as
under :
"5.Before we examine the various questions that arise in this
appeal, we think it profitable to examine the scheme of Order
VI , Rule 16.
16. Striking out pleadings - The Court may at any stage of the
proceedings order to be struck out or amended any matter in
any pleading -
(a) which may be unnecessary, scandalous, frivolous or
vexatious, or
(b) which may tend to prejudice, embarrass or delay
the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the
Court.
It authorises the Court to order that any matter in any
pleading before it be struck out on the grounds specified under
clauses (a), (b) and (c). Each one of them is a distinct ground.
For example, clause (a) authorises the Court to strike out the
pleadings which may be (I) unnecessary, (ii) scandalous,, (iii)
frivolous, (iv) vexatious. If a pleading or part of it is to be
struck out on the ground that it is unnecessary, the test to be
applied is whether the allegation contained in that pleading is
relevant and essential to grant the relief sought. Allegations
which are unconnected with the relief sought in the
proceeding fall under this category."
Similarly, the principles laid down as to the manner of reading the
plaint as a whole without touching the merits of the controversy as laid
down in Dahiben, Shakti Bhog Food Industries Pvt. Ltd. and Mohan Rawale
(supra) are also required to be kept in mind.
8. Keeping the aforesaid statements of law in mind the adjudication of
the prayer made in Civil Application No.753/2020 can be embarked upon.
9. In paragraph 7 (i) Point No.I, it has been pleaded as under :
"Point No.I: The name at Sr.No.3, Column (r) is Nitin J.
Gadkari (Hindu Undivided Family), so a question arises as,
who is Nitin J. Gadkari ? The name Nitin Jairambapu Gadkari
is recorded in 7/12 extracts (land record) of Survey No.264,
Mouza Dhapewada(Khurd) Taluka Kalmeshwar, District -
Nagpur. The said 7/12 extract dated 10.06.2019 is enclosed
herewith and marked as Annexure-D. On the mutation entry
no.192, it is observed that towards from Shankar Rangrao
Pande has executed trust deed regarding the property on
29/10/1958 and also executed a correction deed on
01/08/1975 on behalf of Premilabai Jairambapu Gadkari and
gave the said property to his nephew (Sinster's Son) Nitin
Jairambapu Gadkari. The Ferfar Patrak (Mutation Entry) is
enclosed herewith and marked as Annexure-E. The said
mutation entry is implemented on 24.07.1995 in the
individual name of Nitin Jairambapu Gadkari the instant
respondent no.4. Now, the question arises that who is HUF?
Nitin J. (Jairambapu) Gadkari mentioned in the affidavit of
Nitin Jairam Gadkari. What is the name of Nitin's father ?
Jairam or Jairambapu? It is mentioned in the mutation entry
that Jairambapu is husband of Premilabai. An application for
obtaining Mutation Entry and related documents is submitted
to Tahsildar on 20.06.2019 under Right to Information Act,
2005. The copy is enclosed herewith and marked as
Annexure-F. The information is yet not received."
According to the returned candidate the aforesaid pleadings besides
being scandalous and vexatious, they are intended to embarrass the
returned candidate. It is stated that except for raising question as regards
who constitutes the Hindu Undivided Family (HUF), the name of the father
of the returned candidate and so on these pleadings do not disclose any
cause of action even if they are taken at their face value.
Perusal of paragraph 7(i) Point-I indicates that reference is made to
mutation entry no.192 by observing that the trust deed was executed by one
Shankar Rangrao Pande on 29.10.1958 and thereafter correction deed was
executed on 01.08.1975 by one Premilabai Jairambapu Gadkari. This
property was then given to the returned candidate and the mutation entry
was implemented on 24.07.1995 in the individual name of the returned
candidate. It is seen that the entire paragraph merely seeks to raise a
question as to who constitutes the HUF, the name of the father of the
returned candidate whether it is Jairam or Jairambapu. The election
petitioner merely seeks answer to these questions and the averments therein
are merely in the nature of a roving enquiry sought to be made in that
regard. There is no assertion in the said paragraph that any false
information was given by the returned candidate in the nomination form. In
fact the election petitioner himself does not appear to be sure of the facts
and what he wants to allege. There is total absence of any material fact in
the entire paragraph. Taking the contents of the entire paragraph to be true
nothing can be gathered from the same. In absence of any material fact
being pleaded therein it is found that the averments in paragraph 7(i) Point-
I are unnecessary and not indicating any cause of action. The averments in
paragraph 7(i) Point-I are therefore liable to be struck off being unnecessary.
10. In paragraph 7 (ii) Point No.2, it has been pleaded as under :
"Point-2 : As per the 7/12 extract (land Record) Nitin
Jairambapu Gadkari is the sole owner of Survey No.264,
Mouza Dhapewada (Khurd), Tah. Kalmeshwar, District Nagpur.
Hence, the said land cannot be owned by HUF (Hindu
Undivided Family). The said HUF column/s is/are false."
According to the returned candidate the only assertion found in this
paragraph is that as per the 7/12 extract the returned candidate is the sole
owner of Survey No.264. Hence the said land cannot be owned by the HUF
and the said column indicating otherwise is false. There is no material fact
pleaded that when the nomination form was filed the status of the land was
not as belonging to the HUF. Hence these pleadings are liable to be struck
off.
As per the averments in the aforesaid paragraph, according to the
election petitioner, the 7/12 extract of Survey No.264 records the name of
the returned candidate as the sole owner. In the affidavit filed by the
returned candidate land bearing Survey No.264 has been shown as owned
by the HUF as per the information stated in paragraph 7(B)(i) in that
affidavit. It is therefore asserted that this information as disclosed in the
affidavit is false.
It is found that the election petitioner has specifically asserted that
while in the 7/12 extract the name of the returned candidate is shown as
the sole owner of Survey No.264 Mouza-Dhapewada (Khurd), this land is
shown to be owned by the HUF as per paragraph 7(B)(i) of the affidavit.
The affidavit forms part of the election petition being its annexure. It is
averred by the election petitioner that the said land cannot be owned by the
HUF and hence such information as given by the returned candidate in
paragraph 7(B) (i) of the affidavit is false. In view of presence of this
material fact the pleadings aforesaid cannot be struck of.
11. In paragraph 7 (iii) Point No.3, it has been pleaded as under :
"Point No.3 : In Sr. No.(i) Column (7 B) it is mentioned that
personal agricultural land owned by self Nitin Jairam Gadkari
is NIL. It is written in (a) Self of column (9),
Business/Occupation-as Agriculture. In source of income of
self in (a) of column (9) is also written as agriculture. It is
false, since he do not possess agricultural land, his source of
income cannot be agriculture."
According to the returned candidate the source of income in
paragraph 9(a) of the affidavit is shown as agriculture. It has not been
stated that as the returned candidate does not own agriculture land, his
source of income cannot be agriculture. For earning agricultural income it is
urged that a person need not own land. It has also not been pleaded that
the returned candidate does not have any agriculture income.
As per the election petitioner, the returned candidate had disclosed in
his affidavit that he did not own any land personally. However his source of
income was shown to be through agriculture. This rendered the information
furnished to be false. Hence material facts had been pleaded in the said
paragraph.
A plain reading of the aforesaid paragraph indicates that in the
affidavit filed by the returned candidate and especially paragraph 7(B)(i), it
is stated that the returned candidate individually does not own any
agriculture land. Further in paragraph 9(a) while giving the details of
profession or occupation, the returned candidate has stated the same to be
agriculture and in paragraph 9(A) the details of the source of income is
shown as agriculture, etc. There is specific assertion in the aforesaid
paragraph that according to the returned candidate he does not own land
while his business/occupation is shown as agriculture, the source of income
being shown as agriculture is false. Taking the aforesaid statements at their
face value, it is found that there are averments indicating that the disclosure
made in the affidavit filed along with nomination form with regard to source
of income to be agriculture is false. These averments disclose existence of
material facts and hence they cannot be struck off as being unnecessary or
vexatious.
12. In paragraph 7 (iv) Point No.4 it has been stated as under :
"Point No.4 : In column 7(B), it is mentioned that Smt.
Kanchan Nitin Gadkari owns an agricultural land at
Dhapewada, District Nagpur. In Kalmeshwar Taluka of Nagpur
District, there are two different revenue Mouja, namely
Dhapewada (Khurd) and Dhapewada (Bu.). The agricultural
land of Mrs. Kanchan Nitin Gadkari and Shri Nitin J. Gadkari
are at Dhapewada (Khurd). The incomplete information about
this is misleading information. Hence, it is false."
According to the returned candidate the aforesaid pleadings do not
give rise to any cause of action. All necessary details as required in the
affidavit have been stated and merely because the specific detailed location
being Dhapewada (Khurd) or Dhapewada (Bujruk) not being stated does
not amount to any violation and it is merely an exercise of hairsplitting by
the election petitioner. The land in question has been clearly identified by
mentioning its Survey number and location by stating the name of the Tahsil
concerned.
According to the election petitioner in column 7(B) of the affidavit, it
has been stated that the wife of the returned candidate owns agriculture
land at Dhapewada, District Nagpur. Since there are two different revenue
units by name Dhapewada (Khurd) and Dhapewada (Bujruk), incomplete
and misleading information has been given.
A perusal of paragraph 7(B) of the affidavit and especially the
description column indicates that what is to be stated is agriculture land,
location (s) and survey number (s). The affidavit indicates that the wife of
the returned candidate is shown to be the owner of Khasra Nos. 21/1, 21/2,
51/1 and 51/2 situated at Dhapewada, District Nagpur. The verification to
the said affidavit states that the deponent or the spouse or dependent do not
have any asset or liability other than those mentioned in items 7 and 8 of
the affidavit. On perusal of the description of column in paragraph 7(B) of
the affidavit it becomes clear that the Survey number and the location of the
lands owned has been disclosed and there is no incomplete information. It
is not the averment of the election petitioner that the spouse of the returned
candidate does not own any land at Dhapewada and hence the information
is incorrect or false.
Taking into consideration the observations in Shambhu Prasad
Sharma (supra) which decision also arises out of the adjudication of an
application under provisions of Order VII Rule 11 of the Code in an election
petition, there is substantial and adequate compliance with the information
sought in the affidavit that was required to be filed with the nomination
form. The objection is more to the form than to the substance. The
information furnished cannot be said to be incomplete as the Survey number
and location have been mentioned nor misleading as nothing incorrect
according to the election petitioner has been mentioned therein. Hence the
averments in the aforesaid paragraph do not disclose any material fact. The
affidavit in that regard is not asserted to be false but the election petitioner
alleges furnishing of incomplete information which is misleading. The defect
if it could be called one in not giving further details of the location of the
lands in question cannot be said to be substantial in character as
contemplated by Section 36(4) of the Act of 1951 for the nomination paper
to be rejected by the Returning Officer. It is thus found that the requisite
information as required by the affidavit in the light of the description
column of paragraph 7(B) has been furnished by mentioning the Survey
number and its location. The decision in Resurgence India (supra) pertains
to permitting blanks to remain in the affidavit and hence the same is
distinguishable. This paragraph therefore is liable to be struck off.
13. Paragraphs 7 (v) Point 5 to 7 (vii) Point No.7 can be considered
together since the averments therein relate to the income-tax returns of the
returned candidate with an assertion that amounts less than the income of
the returned candidate have been shown in the affidavit. The said
paragraphs read as under :
"Point No.5 : Sr.No.1, Column (4), Name (Self) Shri Nitin
Jairam Gadkari, year 2013-14, the amount shown in Income-
tax return Rs.2,66,390/-(Rs.Two lakh sixty six thousand three
hundred and ninety only.) In the year 2013-14, Shri Nitin
Jairam Gadkari was member of Maharashtra Legislative
Council. He was drawing a salary of Rs.75,000/-(Rs.Seventy
five thousand only) per month. Therefore, he received an
amount of Rs.9,00,000/- (Rs.Nine lakh only) for 12 months
(or whatever amount but more than he mentioned in his
affidavit). Shri Nitin Jairam Gadkari has disclosed an amount
of Rs.2,66,390/-(Rs.Two lakh sixty six thousand three hundred
and ninety only) while filing income-tax returns, whereas he
has received more than Rs.9,00,000/-(Rs. Nine Lakh only) (or
whatever amount but more than he mentioned in his
affidavit). It is seen that the amount shown is less than
income, meaning thereby that a false amount is shown."
"Point No.6 : Sr.No.1 Column No.(4) name Self Shri Nitin
Jairam Gadkari, year 2014-15 the amount shown in income-
tax return Rs.6,01,450/- (Rs. Six lakh one thousand four
hundred and fifty only). In 2014-15 Shri Nitin Jairam Gadkari
was Member of Maharashtra Legislative Council till June end
and he received an amount of Rs.2,25,000/- (Rs.Two lakh
twenty five thousand only) as monthly salary and allowances
@ Rs.75,000/- per month.
Thereafter Shri Nitin Jairam Gadkari elected as Member
of Parliament from Nagpur Loksabha constituency and became
Minister in Central Ministry. According to information he is
receiving at least an amount of Rs.1,65,000/- (Rs.One lakh
sixty five thousand only) (or whatever amount but more than
he mentioned in his affidavit) per month on account of salary
and allowances. In the Income-tax returns Shri Nitin Jairam
Gadkari Rs.6,01,450/-( Rs. Six lakh one thousand four
hundred and fifty only) whereas he has received more than
Rs.17,10,000/-(Rs. Seventeen lakh ten thousand only) i.e. for
nine months Rs.14,85,000/- + Rs. 2,25,000/- =
Rs.17,10,000/-. An amount less than income are shown in
affidavit. Hence the affidavit is false."
"Point No.7 : Sr.No.1, Column (4) name (self) Nitin Jairam
Gadkari, year 2015-16 the amount shown in Income-tax return
Rs.8,07,300/-( Rs. Eight lakh seven thousand and three
hundred only). In 2016-17 Rs.7,65,730/-( Rs. Seven lakh sixty
five thousand seven hundred and thirty only) is shown. In
year 2017-18 an amount of Rs.6,40,700/-(Rs. Six lakh forty
thousand and seven hundred only) is shown. According to
information, Shri Nitin Jairam Gadkari is receiving an amount
of Rs.19,80,000/- (Rs. Nineteen lakh eighty thousand only) (or
whatever amount) as monthly salary and allowance
Rs.1,65,000/-(Rs.One lakh sixty five thousand only). The
amount shown in Income-tax returns of years 2015-16, 2016-
17, and 2017-18 are less, meaning that the affidavit is false. In
this connection, Shri Suresh Shamrao Hedau have submitted
an application to the Director, Central Public Information
officer, Loksabha Secretariat, New Delhi on 18.06.2019 under
the Right to Information. Copy enclosed herewith and marked
as Annexure-G."
According to the returned candidate all necessary requirements
prescribed by Form 26 Column 4 have been disclosed by the returned
candidate. What is required to be disclosed in the affidavit is the total
income shown in the Income-tax returns and nothing further. The allegation
that income shown by the returned candidate while submitting his income-
tax returns without an averment that what is reflected in the income -tax
return is different from the income disclosed in column no.4 of Form 26 has
not been pleaded and hence no material fact giving rise to any cause of
action is disclosed.
As per the election petitioner since the figures indicating income of
the returned candidate in his affidavit were false as pleaded, there were
material facts existing giving rise to a triable issue. The returned candidate
had suppressed his income and hence these pleadings were not liable to be
struck off.
Form 26 Clause 4 requires a candidate to furnish the details of
Permanent Account Number (PAN) and status of filing of income-tax
returns. The election petitioner has referred to the income-tax returns of the
five financial years which information is found in column no.4. However
according to the election petitioner, the amounts shown in the income-tax
returns is less. The returned candidate earned more income than what was
shown in the income-tax returns. On that count it is stated that the figures
indicated in the affidavit filed by the returned candidate are false. It is
found that the pleadings in the aforesaid paragraphs are based on
misconception as to what is required to be stated in Form 26 Point 4 of the
affidavit. The only requirement is the mention of the financial year for
which the income-tax return has been filed and the total income shown in
the income-tax return by the candidate. Even according to the election
petitioner this information has been supplied by the returned candidate. It
is the assertion of the election petitioner that the figures shown by the
returned candidate indicating the income disclosed in the income-tax
returns is different than what is disclosed in the affidavit. In other words, it
is not pleaded that the information disclosed in the affidavit as regards the
income-tax returns as filed is incorrect or false. According to the election
petitioner the returned candidate earned higher income than what was
disclosed in his income-tax returns. These assertions would not take the
case of the election petitioner anywhere as Form 26 Point No.4 merely
requires disclosure of financial years when the income-tax returns had been
filed and the total income of the candidate as shown in those returns. In the
absence of any assertion that the information disclosed by the returned
candidate in Form 26 Point 4 is not as per the total income shown in the
income-tax returns, there is no material fact pleaded by the election
petitioner to warrant these pleadings to remain on record. The pleadings in
the aforesaid paragraphs are therefore unnecessary as the election petitioner
has not pleaded that the total income as shown in the income-tax returns
filed by the returned candidate is different from what was disclosed in the
affidavit. Thus paragraphs 7 (v) Point 5 to 7(vii) Point No.7 are liable to be
struck off.
14. Paragraph 7(viii) Point No.9 (wrongly shown as point no.9 instead of
point no.8) reads as under :
"Point No.9 : The property involved in the Crimes mentioned
by the Respondent No.4 in Column No.5(ii) or
outcome/income/profit etc. which is outcome of those
Criminal/Civil-business activities or all other Criminal/Civil
activities, which is clearly not shown in any part of the affidavit
Form-26 dated 25/03/2019. As well as whatever income of the
spouse of the Respondent No.4 regarding the income from
turmeric boiler, wherein in the jurisdiction of Kalmeshwar
police Station Nagpur (rural) turmeric boiler was blasted &
someone died in that incidence the said news item dated 23
May 2018 published in Hindustan times & other news papers.
So this is income of boiler industry, boiler may be legal or
illegal the income from this criminal or civil business is not
shown by the Respondent No.4 in his affidavit Form-26. News
Item of Hindustan Times dated 23/05/2018 is annexed
herewith and marked as Annexure-H.
The grievance of the petitioner is that the respondent
No.4 have not supplied the true and correct information as
required by law in the affidavit annexed with the nomination
paper which is to be ventilated by preferring Election Petition
under Section 81, Section 100 (1) (b) read with Section 123
(2), (d) (I) dated 25.03.2019."
According to the returned candidate the aforesaid averments do not
disclose any material fact whatsoever as the same are totally vague. The
same do not give any details at all and are based merely on imagination and
conjectures of the election petitioner.
As per the election petitioner, the averments clearly disclose cause of
action as true and correct information as required by law had not been
furnished by the returned candidate in his affidavit submitted along with the
nomination form.
The objection of the returned candidate to the averments in the
aforesaid paragraph is justified. It cannot be gathered on a complete
reading of this paragraph as to what in fact the election petitioner desires to
urge. The averments "whatever income of the spouse of the returned
candidate earned from the turmeric boiler ...... may be legal or illegal" do
not indicate what the returned candidate wants to convey. These averments
are totally vague and based on conjectures. The paragraph contains mere
allegations without any material facts. There are no material facts on the
basis of which the election petition could proceed further on these
pleadings. On this count the aforesaid paragraph is liable to be deleted.
15. In paragraphs 23 and 24 it has been pleaded as under :
"23. It is submitted that the grievance was that the
representatives of the candidates are not being permitted to
put 1000 strokes on each selected EVM as per the guidelines
of the Election Commission of India. That the second
grievance is in respect of mock trial and it was submitted that
only one representative of each candidate is permitted to
attend and to carry out the mock trial of EVM chosen for
testing. It was also apprehension that on the day of polling
the mock polls are conducted by permitting the candidates or
their agents to put 50 strokes in EVM's randomly but if at all
there is tampering it would be discovered if more than 50
strokes are permitted because the mock drills are designed
suitably to conduct only 50 strokes therefore there was
demand that the strokes be enhanced to beyond 50 strokes.
Copies of the representations are annexed herewith and
marked as Annexure-J."
"24. It is most humbly submitted that as per the guidelines of
the Election Manual 2019, the respondent no.2 neither
permitted 1000 strokes, nor permitted the strokes enhanced to
beyond 50 strokes during the mock trial there is clear-cut
violation and non-compliance of the Election Manual 2019
and the same is in benefit of elected candidate and as per
Section 100 (1) (d) (iv) it is the ground for declaring the
election of the elected candidate as void. It is most humbly
submitted that as all questions kept open by this Hon'ble
Court in WP No.2898/2019 the petitioner is making his
grievance that non following the instructions issued by the
Election Commission and the non-compliance with the
provisions of the act of 1951 and orders issued by the Election
Commission of India in the nature of the Election Manual
2019 squarely covers the situation declaring the election of
the elected candidate as void."
According to the returned candidate on the basis of the averments
made in paragraphs 23 and 24 the election petitioner seeks to contend that
there was a clear violation and non-compliance of the Election Manual-2019
as a result of which the election of the returned candidate was rendered
void under the provisions of Section 100 (1) (d)(iv) of the Act of 1951. It is
urged that for declaring an election to be void due to non-compliance with
the provisions of Constitution of India or the Act of 1951 or any Rules or
Orders made under the Act of 1951, it is necessary for the election petitioner
to specifically aver that on account of such non-compliance the result of the
election insofar as it concerns the returned candidate has been materially
affected. It has not been averred in these paragraphs that on account of the
alleged non-compliance of the Election Manual-2019 or for that matter the
Rules or Orders made under the Act of 1951, the election of the returned
candidate has been materially affected. Mere non-compliance by itself
would not render the election to be void unless it is shown that as a result of
such non-compliance the result of the election has been material affected.
In absence of these required averments the aforesaid paragraphs are liable
to be struck off being unnecessary and not giving rise to any cause of action.
In any event, it is submitted that there is no material fact pleaded in these
paragraphs.
According to the election petitioner it having been averred that there
was non-compliance as contemplated by Section 100 (1)(d) (iv) of the Act
of 1951, the election of the returned candidate was rendered void. It has
been averred that though under the Election Manual-2019, 1000 strokes
ought to have been permitted during the mock trial the same was not done.
In the light of the liberty granted by this Court in Writ Petition
No.2898/2019 the grievance has been rightly raised by the election
petitioner in the present election petition. Relying upon the decision in
Madiraju Venkata Ramana Raju (supra) it was submitted that it was not
necessary to specifically aver and then prove that on account of such non-
compliance with the requirements of the Election Manual-2019 the election
of the returned candidate was materially affected. In the light of the law
laid down in the aforesaid decision it was submitted that there was no
substance in the objection raised by the returned candidate for seeking
deletion of the aforesaid paragraphs.
16. Perusal of the paragraphs 23 and 24 reproduced hereinabove
indicates that the election petitioner seeks to urge that the election of the
returned candidate be declared void under Section 100 (1) (d) (iv) of the
Act of 1951 on the ground that there was violation as well as non-
compliance of the Election Manual-2019. Through the process of judicial
interpretation the distinction while seeking declaration as to the voidness of
the election of the returned candidate under the provisions of Section 100
(1) (d) (i) and Section 100 (1) (d) (iv) of the Act of 1951 vis-a-vis the
requirement of pleading that the result of the election insofar as it concerns
the returned candidate has been materially affected stands recognised.
Insofar as sub-clause (i) clause (d) of Section 100 (1) is concerned, it has
been held by the Hon'ble Supreme Court that if it is found that the
nomination form of the returned candidate has been improperly accepted
and the election of the returned candidate is void on that count, it would
not be necessary to plead and prove that the result of the election insofar as
it concerns the returned candidate has been materially affected. Reference
in this regard can be made to the decision in Durai Muthuswami Vs.
N.Nachiappan and ors. (1973) 2 SCC 45 wherein it has been held that if
there was only one seat to be filled in and there were only two contesting
candidates, on the finding that the nomination form of the returned
candidate had been improperly accepted it would be undisputed that the
result of the election insofar as it concerns the returned candidate had been
materially affected. This decision has been referred to in Madiraju Venkata
Ramana Raju (supra) and has been followed. In Madiraju Venkata Ramana
Raju (supra) the facts indicate that the election of the returned candidate
had been challenged on grounds ascribable to Section 100 (1) (d) (i) of the
Act of 1951. While considering the question as to the absence of an
averment in the election petition that on account of improper acceptance of
the nomination form of the returned candidate the same had materially
affected the election result, it was held that such averment would not be
necessary where the election of the returned candidate is challenged on the
ground of improper acceptance of his nomination. It was observed that if
the election petition is based on the ground of improper acceptance of the
nomination form of the returned candidate under Section 100 (1) (d) (i) of
the Act of 1951 and that plea is accepted it would necessarily follow that the
election result of the returned candidate has been materially affected.
Though heavy reliance was placed by the learned counsel for the election
petitioner on the aforesaid decision, it is found that the ratio of the said
decision cannot be made applicable to the facts of the present case to the
extent the election of the returned candidate is challenged under Section
100 (1)(d) (iv) of the Act of 1951.
17. In this regard reference can be made to the judgment of the three
Judge Bench in L.Shivaramagowda (supra) holding it imperative for the
purpose of Section 100 (1)(d)(iv) of the Act of 1951 an averment that the
election of the returned candidate has been materially affected due to non-
compliance with the provisions of the Constitution of India or the Act of
1951 or any Rules or Orders made thereunder. Similarly in Election
Commission of India through Secretary Vs. Ashok Kumar and others, (2000)
8 SCC 216 in paragraph 29 it has been held that the ground of non-
compliance with the provisions of Constitution of India or the Act of 1951 or
any Rules or Orders made thereunder would be covered by sub-clause (iv)
of clause (d) of sub-Section (1) of Section 100 of the Act of 1951. The
result of the election insofar as it concerned the returned candidate has to
be set aside for any such non-compliance and on satisfying the requirement
of the result of the election having been shown to have been materially
affected insofar as the returned candidate was concerned. In Mangani Lal
Mandal Vs. Bhishnu Deo Bhandari (2012)3 SCC 314 it was held in clear
terms that for the election petitioner to succeed under Section 100(1)(d)
(iv)of the Act of 1951 he has not only to plead and prove the ground but has
also to show that the result of the election insofar as it concerns the
returned candidate has been materially affected. This view is further
followed in G.S.Iqbal Vs. K.M.Khader and ors (2009) 11 SCC 398 and
reiterated in Kameng Dolo Vs. Atum Welly (2017) 7 SCC 512.
From the aforesaid decisions it becomes crystal clear that if the
election of the returned candidate is challenged under Section 110 (1)(d)(i)
of the Act of 1951 alleging improper acceptance of the nomination of the
returned candidate then on the same being proved it would sufficient to
declare the election of the returned candidate to be void. It would not be
necessary in such case to plead and prove that the result of the election
insofar as it concerns the returned candidate has been materially affected.
Improper acceptance of the nomination form of the returned candidate itself
materially affects the election. On the other hand where the election is
challenged under Section 100 (1) (d) (iv) of the Act of 1951 and non-
compliance with the provisions of the Constitution of India or the Act of
1951 or any Rules or Orders made thereunder is alleged, it would be
necessary to plead and prove that on account of such non-compliance the
result of the election insofar as it concerns the returned candidate has been
materially affected.
18. The averments in paragraphs 23 and 24 of the election petition
specifically raise a challenge based on the provisions of Section 100(1)(d)
(iv) of the Act of 1951 alleging violation and non-compliance of the Election
Manual-2019 and therefore it was necessary for the election petitioner to
specifically aver that on account of such violation and non-compliance of the
Election Manual-2019 the result of the election insofar as it concerns the
returned candidate has been materially affected. There is no such averment
in both these paragraphs as a result of which it would not be permissible for
the election petitioner to lead any evidence to prove that by virtue of such
alleged non-compliance the election of the returned candidate has been
materially affected. In that view of the matter, the averments in paragraphs
23 and 24 are liable to be struck off being unnecessary and not giving any
cause of action.
19. In paragraphs 27 and 28 the election petitioner has pleaded as
under:
"27. It is submitted that Shadow Observation Register for
maintenance of day to day accounts of the contesting
candidates is maintained by the accounting team of every
candidate. It is submitted that for the respondent no.4 also his
accounting team has maintained the shadow observation
register. It is mandatory and also in practice of respondent
no.1 and 2 to examine the extract of shadow register provided
by the candidate and to upload it on the official website i.e.
open to general public for inspection. The total expenses as on
01.04.2019 of the respondent no.4 in the shadow observation
was shown as 678243.60 and whereas the expenses as on
02.04.2019 shown as 20,21,393.40 and on 06.04.2019 the
total expenses shown as 67,51,710.77 and the Election
Observer and Expenses Controller for the Lok-Sabha Elections
2019 have also certified the same on 09.04.2019 and have
ordered for issuance of notice to the respondent no.4 seeking
explanation in difference of Rs.44,81,731.00. It is most
humbly submitted that the copy of the same document is
downloaded by the petitioner from the official website of the
Election Commission. That the bare perusal of the expenses
submitted by the respondent no.4 shows that expenses as on
06.04.2019 shown as 67,51,710.77 and it was reduced later
on."
"28. It is submitted that the petitioner was shocked when he
again examined the expenses from the official website and
found that respondent no.4 have submitted the expenses to the
tune of Rs.44,88,041.93 only. It is submitted that the
respondent no.4 have not submitted the expenses of polling
day i.e. 11.04.2019 and have also not submitted the expenses
of the counting day i.e. on 23.05.2019. It is most humbly
submitted that the expenses shown by the respondent no.4 is
more than the limit fixed by the operation of Section 77 and
Rule 90 of the Conduct of the Election Rules 1961. Thus in
view of this the respondent no.4 have committed the corrupt
practice in view of the Section 123 (6) of the RP Act 1951.
Copies of the shadow register and the abstract of statement of
election expenses are annexed herewith and marked as
Annexure-K."
According to the returned candidate the averments in these
paragraphs do not disclose any cause of action much less a ground alleging
commission of corrupt practice by the returned candidate. It is urged that
the election petitioner has proceeded on a wrong assumption that the
Shadow Observation Register has to be maintained by the candidate. Such
Register has to be maintained by the District Election officer and his team.
Reference in this regard is made to the Compendium of Instructions on
Election Expenditure Monitoring issued by the Election Commission of
India. It is the candidate who has to maintain accounts of actual
expenditure. The Shadow Observation Register is based on guess work and
the figures stated therein have to be reconciled with the accounts
maintained by the returned candidate. Reference is made to the provisions
of Section 77(3) read with Section 123(6) of the Act of 1951 to submit that
only if it is alleged by the election petitioner that the election expenses of
the returned candidate exceed the prescribed limit of Rs. Seventy lakhs, the
provisions of Section 123(6) would stand attracted so as to constitute a
corrupt practice. The pleadings in the election petition nowhere indicate
any assertion by the election petitioner that the election expenses of the
returned candidate exceeded the limit of Rs. Seventy lakhs. On the contrary,
the abstract of statement of election expenses that was annexed to the
election petition itself indicated that the amount of election expenses was
less than the maximum limit prescribed. On the aforesaid averments it
could not be said that the provisions of Rule 90 of the Rules of 1961 had
been violated. Since the aforesaid averments do not disclose any material
fact, no triable issue would arise and therefore the aforesaid pleadings were
liable to be struck off.
According to the election petitioner the averments in these
paragraphs when read together disclose material facts that the returned
candidate had incurred election expenses exceeding the maximum
permissible limit of Rs. Seventy lakhs. Besides not maintaining the account
of election expenses correctly it had been pleaded that the provisions of
Section 77 of the Act of 1951 with Rule 90 of the Rules of 1961 had been
violated. Cause of action had been disclosed.
20. For the purposes of constituting a corrupt practice the provisions of
Section 123(6) of the Act of 1951 require the incurring or authorising of
expenditure in contravention of Section 77 of the Act of 1951. Section 77 of
the Act of 1951 prescribes for maintenance of account of the election
expenses and the maximum expenses permissible to be expended. As per
Rule 90 of the Rules of 1961, the maximum limit of election expenses in a
parliamentary constituency in the State of Maharashtra is Rs. Seventy lakhs.
In this regard the legal position as laid down by the Hon'ble Supreme Court
can be found in the decision in Kamalnath (supra) wherein it has been
observed in paragraph 4 as under :
4.... "When maintainability of an election petition is
considered from the stand point as to whether materials facts
have been pleaded or not in a petition alleging corrupt
practice on the ground that expenses incurred by the
candidate are more than the prescribed limit, it would be
necessary to aver the fact that the candidate has incurred the
expenditure or has authorised any other person to incur the
expenditure or that his election agent has incurred the
expenditure and further, the candidate has undertaken the
liability to reimburse. These would constitute the material
facts of an election petition, which is filed, alleging corrupt
practice within the ambit of Section 123(6) read with Section
77 of the Act and Rule 90 of the Conduct of Election
Rules......But the Court observed that in a petition on the
allegation of corrupt practice, the cause of action cannot be
equated with the cause of action, as is normally understood
because of the consequences that follow in a petition based on
the allegations of corrupt practices inasmuch as an election
petition seeking a challenge to the election of a candidate on
the allegation of corrupt practices is a serious matter and if
proved, not only does the candidate suffer ignominy, but he
also suffers disqualification from standing for election for a
period that may extend to six years. After taking note of all the
earlier decisions, the Court held that 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 and it cannot be left to time, chance or conjecture for
the Court to draw inference by adopting an involved process of
reasoning."
Similarly in L.R.Shivaramagowda (supra) it has been held that it is only
when the provisions of Section 77(3) of the Act of 1951 are violated on
account of election expenses exceeding the maximum limit prescribed that a
corrupt practice can be said to be committed by the returned candidate. In
paragraph 18 of the said decision it has been observed as under :
18.... . "In order to declare an election to be void, the grounds
were set out in Section 100 of the Act. Sub-section 1(b) of
Section 100 relates to any corrupt practice committed by a
returned candidate or his election agent or by any other person
with the consent of a returned candidate or his election agent.
In order to bring a matter within the scope of sub-section 1(b),
the corrupt practice has to be one defined in Section 123.
What is referred to in sub-section (6) of Section 123 as corrupt
practice is only the incurring or authorising of expenditure in
contravention of Section 77. Sub-section (6) of Section 123
does not take into its fold, the failure to maintain true and
correct accounts. The language of sub-section (6) is so clear
that the corrupt practice defined therein can relate only to sub-
section (3) of Section 77,i.e. incurring or authorising of
expenditure in excess of the amount prescribed. It cannot by
any stretch of imagination be said that non-compliance with
Sections 77(1) and (2) would also fall within the scope of
Section 123(6). Consequently, it cannot fall under Section
100(1)(b). The attempt here by the first respondent is to bring
it within Section 100 (1)(d)(iv). The essential requirement
under that sub-section is that the result of the election insofar
as it concerns the returned candidate has been materially
affected. It is needless to point out that failure on the part of
the returned candidate to maintain accounts as required by
Sections 77(1) and (2) will in no case affect, and much less
materially, the result of the election."
21. In the light of the aforesaid legal position if the averments
in paragraphs 27 and 28 of the election petition are perused, it is seen that
according to the election petitioner the total expenses of the returned
candidate as on 01.04.2019 in "shadow observation was shown as
678243.60". The figure quoted herein is much below the maximum
permissible limit of election expenses as shown in "shadow observation".
However, it has been pleaded that the expenses as on 02.04.2019 were
shown as Rs.20,21,393.40 and on 06.04.2019 the total expenses were
shown were Rs.67,51,710.77. It is then pleaded that the Election Observer
and Expenses Controller in the Lok-Sabha Elections-2019 had certified the
same on 09.04.2019 and had ordered for issuance of notice to the returned
candidate seeking explanation for the difference of Rs.44,81,731.00. It is
thereafter pleaded that on 06.04.2019 expenses submitted by the returned
candidate were Rs.67,51,710.77 and the same were reduced lateron. These
averments nowhere indicate that the election expenses of the returned
candidate exceeded the maximum limit of Rs.Seventy lakhs. Thereafter, the
election petitioner has pleaded that the returned candidate submitted
election expenses to the tune of Rs.44,88,041.93 only. The returned
candidate did not submit expenses of the polling day which was 11.04.2019
as well as the expenses of the counting day which was 23.05.2019.
According to the election petitioner, the expenses shown by the returned
candidate were more than the limit fixed by the operation of Section 77 of
the Act of 1951 and Rule 90 of the Rules of 1961 and thus the returned
candidate had committed a corrupt practice in view of Section 123(6) of the
Act of 1951.
22. Reading the averments in paragraphs 27 and 28 nowhere indicate a
specific assertion that the returned candidate by spending an amount
beyond the maximum limit prescribed of Rs. Seventy lakhs had violated the
provisions of Section 77(3) of the Act of 1951. On the contrary, the
averments of both these paragraphs indicate that according to the election
petitioner the account of election expenses had been improperly maintained
by the returned candidate and nothing further. Even the averments " It is
most humbly submitted that the expenses shown by the respondent no.4 is
more than the limit fixed by the operation of Section 77 and Rule 90 of the
Conduct of the Election Rules 1961. Thus in view of this the respondent
no.4 have committed the corrupt practice in view of Section 123(6) of the
Act of 1951." do not constitute a material fact so as to give rise to a triable
issue that there was violation of the provisions of Section 77 (3) of the Act
of 1951 especially when the abstract of statement of the election expenses
which is annexed as Annexure-K to the election petition is perused. Since
this Annexure forms a part of the election petition and the election petition
also refers to the said Annexure, it can be looked into being a part of the
election petition. This abstract of statement of the election expenses
indicates the total election expenses of the returned candidate to be
Rs.44,88,041.93. Even the averments quoted aforesaid that the expenses
"shown" by the returned candidate were more than the limit fixed do not
find support from the abstract of statement of the election expenses since
the amount of Rs.44,88,041.93 as "shown" is less than the maximum limit
fixed by Rule 90 of the Rules of 1961. Where such expenses are "shown" by
the returned candidate is also not pleaded. Thus the averments reproduced
hereinabove that the expenses shown by the returned candidate were more
than the limit fixed by the provisions of Section 77 of the Act of 1951 read
with Rule 90 of the Rules of 1961 are not in tune with the abstract of
statement of the election expenses annexed by the election petitioner
himself. At the cost of repetition it may be stated that failure to maintain
true and correct account of the election expenses is not a matter covered by
Section 123(6) of the Act of 1951 inasmuch as the provisions of Section
77(1) and (2) of the Act of 1951 deal with maintenance of account of the
election expenses. Thus in the absence of the averments that the election
expenses of the returned candidate exceeded the maximum limit of
Rs.Seventy lakhs there is absence of any material fact in these paragraphs
and hence no triable issue arises from the said averments. Moreover, since
the provisions of Section 123(6) of the Act of 1951 are sought to be invoked
by the election petitioner alleging commission of corrupt practice, it was all
the more necessary for the election petitioner to have specifically averred
about the same by pleading material facts. It cannot be forgotten that a
charge of corrupt practice is in the nature of a quasi-criminal charge. Hence
the pleadings in the paragraphs 27 and 28 not giving rise any cause of
action are liable to be deleted.
23. In paragraph 30 it has been pleaded as under :
"30. It is shocking and surprising to the petitioner, during the
existence of the Model Code of Conduct, the respondent No.4
got published an advertisement of opening ceremony of Rokde
Jewellers containing his photographs. It is most humbly
submitted that in view of the above quoted provisions of law
the respondent no.4 ought to have included the expenses of
that advertisement in his election expenses but failed to do so
and thus have violated the mandate of Section 77 of RP Act,
1951 and committed the corrupt practice as per Section
123(6) of the RP Act 1951. It is most humbly submitted that
as per the information of the petitioner the respondent no.4
have not taken any action against said Rokde Jewellers nor
have issued any notice asking from him about the explanation
about the advertisement. That the petitioner got the
information that the respondent authorities have registered
FIR is registered against the said Rokde Jewellers on
11.04.2019, thus on this point also there is violation of Rule
90 of the Conduct of Election Rules, 1961 and Section 77 of
the RP Act 1951 and the respondent no.4 have committed the
corrupt practice in view of Section 123(6) of the RP Act 1951.
Copy of the news paper cutting are annexed herewith and
marked as Annexure-L collectively."
According to the returned candidate the averments in this paragraph
are vague without disclosing any material fact. The averment that the
returned candidate got published an advertisement of opening ceremony of
Rokde Jewellers containing his photographs does not indicate that these
photographs were connected with the election campaign of the returned
candidate. There is no averment in that regard. Further it is submitted that
the expenses alleged to have been incurred have not been indicated nor is
there any averment that if such expenses had been included in the election
expenses of the returned candidate the total election expenses would have
exceeded the maximum permissible limit. At the highest it was submitted
that failure to include the alleged expenses of publishing the advertisement
in the election expenses of the returned candidate would result in violation
of Section 77(1) of the Act of 1951 and hence it would not be a corrupt
practice. The averments were in general terms without a statement that the
provisions of Section 77(3) of the Act of 1951 had been violated resulting in
commission of a corrupt practice under Section 123(6) of the Act of 1951.
The statement that the authorities had registered a First Information Report
(FIR) against the said Rokde Jewellers also does not carry the case of the
election petitioner any further. These averments did not give rise to any
cause of action and being vexatious the said pleadings were liable to be
struck of.
According to the election petitioner the averments in paragraph 30
do give rise to a triable issue inasmuch as publishing the advertisement
during the existence of the Model Code of Conduct resulted in violation of
the provisions of Rule 90 of the Rules of 1961. The newspaper reports were
annexed to the election petition and therefore could be read along with
these averments. Reading the entire paragraph as a whole, the pleadings
were not liable to be struck off.
24. A complete reading of paragraph 30 indicates that according to the
election petitioner during the subsistence of the Model Code of Conduct the
returned candidate got published an advertisement of opening ceremony of
Rokde Jewellers containing his photographs. There is no averment that the
advertisement as published was in relation to the election of the returned
candidate. Further merely by averring that the expenses of the
advertisement ought to have been included in the election expenses by the
returned candidate and by failing to do so, there was violation of the
mandate of Section 77 of the Act of 1951 would indicate that according to
the election petitioner there was violation of Section 77(1) of the Act of
1951 as the election expenses had not been correctly maintained by the
returned candidate. In the absence of any averment that if the alleged
expenses for publishing the advertisement had been included in the election
expenses of the returned candidate the same would have resulted in the
maximum limit of election expenses being exceeded, there is no material
fact pleaded. There is no averment that the provisions of Section 77(3) of
the Act of 1951 read with Rule 90 of the Rules of 1961 have been violated.
As stated above, it is only if there is an assertion of violation of the
provisions of Section 77(3) of the Act, 1951 read with Rule 90 of the Rules
of 1961 that it could be said that the returned candidate had committed a
corrupt practice as per Section 123 (6) of the Act of 1951. In absence of
these material statements in the entire paragraph it has to be held that the
material facts constituting a valid cause of action are absent and the
averments in paragraph 30 do not give rise to any triable issue. Even the
averment that the FIR was registered against said Rokde Jewellers resulting
in violation of Rule 90 of the Rules of 1961 and Section 77 of the Act of
1951 is also of no avail as the aforesaid provisions relate to exceeding the
limit of election expenses prescribed. Since the averments in paragraph 30
do not disclose any material fact there would be no useful purpose served by
permitting them to remain on record as they do not give rise to any triable
issue. The said averments are thus liable to be struck off being unnecessary.
This conclusion is recorded by considering the contents of entire paragraph
30 to be true.
25. As a result of the aforesaid discussion, it is found that the averments
in paragraphs 7(i) Point No.1, 7(iv) Point No.4, 7(v) Point No.5 to 7(vii)
Point No.7, 7(viii) Point No.9, 23, 24, 27, 28 and 30 are liable to be struck
of under the provisions of Order VI Rule 16 of the Code for the reasons
indicated hereinabove. However the averments in paragraphs 7(ii) Point
No.2 and 7(iii) Point No.3 of the election petition are not liable to be struck
off under the provisions of Order VI Rule 16 of the Code as they disclose
material facts and give necessary cause of action to challenge the election of
the returned candidate. As a result of this adjudication the prayer made in
Civil Application No. 12/2021 seeking rejection of the election petition
cannot be granted. The election petition consequently would proceed for
trial on the basis of the averments that remain after the paragraphs as
directed to be struck off are so struck off.
Consequently Civil Application No.753/2020 (Exhibit 18) is partly
allowed to the extent stated hereinabove and Civil Application
No.12/2021(Exhibit 19) stands rejected.
JUDGE
Andurkar..
