Khan Mohammed Arif Lallan Alias ... vs Dilip Bhausaheb Lande And 14 Ors
2022 Latest Caselaw 461 Bom

          Digitally
          signed by
          SHAMBHAVI                                                  E P-27-2019.odt
SHAMBHAVI NILESH
NILESH    SHIVGAN
SHIVGAN   Date:
          2022.01.13
          18:19:57
          +0530              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION

                                   APPLICATION (L) NO.20734 OF 2021
                                                  IN
                                   ELECTION PETITION NO.27 OF 2019
                                             ALONGWITH
                                   APPLICATION (L) NO.17416 OF 2021


                       Dilip Bhausaheb Lande,                             ...Applicant

                       IN THE MATTER BETWEEN

                       Khan Mohammed Arif Lallan
                       alias Mohammed Arif (Naseem)
                       Khan
                       Aged 56 years, residing at Rani Plaza,
                       Shamsuddin Nagar, Jari Mari,
                       Kurla Andheri Road, Sakinaka,
                       Mumbai-400072                                         ...Petitioner

                                  Vs

                       1) Dilip Bhausaheb Lande
                       An adult inhabitant of India
                       Residing at Avesh Sandesh Bhawan,
                       Shivaji Maidan, Kaju Pada, Kurla (W),
                       Mumbai 400 072

                       2) The Returning Officer,
                       An adult inhabitant of India,
                       168, Chandivali Assembly Constituency,
                       I.T.I. New Building, Kirol Road, Vidyavihar

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(West), Mumbai-400086

3) Sumit Pandurang Baraskar,
An adult inhabitant of India,
Residing at A-10, Achanak Housing
Society, Satyanagar, Andheri-Ghatkopar
Link Road, Kurla (West), Mumbai-400062

4) Abdul Hasan Khan,
An adult inhabitant of India, Residing at
Sabeena Apartment, Flat No.101, A-Wing,
First Floor, Netaji Palkar Marg, Ghatkopar
West, Mumbai-400084.

5) Brijesh Surendranath Tiwari,
An adult inhabitant of India,
Residing at Room No.6,
Matrachaya Hsg. Soc., L.B.S. Nagar,
Andheri-Ghatkopar Link Road, Sakinaka,
Mumbai-400072.

6) Mohd. Iran Qureshi,
An adult inhabitant of India,
Residing at Jai Hind Mutton Shop, Unwala
Compound, Kurla-Andheri Road, Jarimari,
Mumbai-400072.

7) Sirajuddin Hafizullah Khan,
An adult inhabitant of India,
Residing at A-22, Noor Manjil, L.B.S.Marg,
Near Skyway Hotel, Kurla (West),
Mumbai-400070

8) Sunil Baburam Shukla
An adult inhabitant of India,

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Residing at 203/204, Samarth Sampada,
Lokhandwala Back Road, Andheri,
Mumbai-400052


9) Shri Machindra Krisna Kothare,
An adult inhabitant of India,
Residing at Kala Killa, Shivner Tarun Mitra
Mandal, Sandesh Nagar, Bailbazar, Kurla
(West), Mumbai-400070.

10) Mamta Subhrhanshu Dixit
An adult inhabitant of India,
Residing at 504, Panchratna Co-op. Hsg.
Soc., Asalpha Village, N.S.Road,
Ghatkopar (West), Mumbai-400084.

11) Mohammed Mobin Mohammed Islam
Shaikh
An adult inhabitant of India, Residing at
Sanjay Nagar, Hill No.03 Sunder Baug
Lane, Near Sai Baba Chawk, Kamani,
Kurla (West), Mumbai-400070

12) Mohammed Hasan Shaikh,
An adult inhabitant of India,
Residing at Sanjay Nagar, Room No.2,
Prahlad Chawl, Vijay Nagar, Jarimari,
Kurla-Andheri Road, Kurla (West),
Mumbai - 400072

13) Sandeep Ramchandra Jadhav,
An adult inhabitant of India,
Residing at Jadhav Niwas, Rupali Chawl
Committee, Walmik Nagar, Opp: Himalaya

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Society, N.S.S. Road, Asalpha Village,
Ghatkopar (West), Mumbai-400084.




14) Hajrat Sardar Pathan Mulani
An adult inhabitant of India,
Residing at Room No.246, Indira Nagar
Zopadpatti, Jarimari, Kurla-Andheri Road,
Kurla (West), Mumbai-400072

15) Harshwardhan Pandey,
An adult inhabitant of India,
Residing at 606, 17, A/C Amardeep Hsg.
Soc., Sangharsh Nagar, Chandivali Farm
Road, Andheri (East), Mumbai 400 072            ... Respondents

                             ...

Mr. Girish Godbole, Senior Counsel with Mr. Aman
Kacharia, Ms. Vedanshi Shah i/by Mr. Bipin Joshi for the
Petitioners.

Mr. Shardul Singh i/by Mr. Sandesh D. Inamdar-Shinde and
Mr. B.A.Lawate for the Respondent No.1.


           CORAM : SANDEEP K. SHINDE J.
           RESERVED ON   : DECEMBER 23, 2021.
           PRONOUNCED ON: JANUARY 13, 2022



JUDGMENT :

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1           The short question, which falls for consideration

in this case is, whether the Election Petition is liable to be

dismissed for want of "material facts".

2 The position in law is, well-settled that an

election petition can be summarily dismissed, if the

mandatory requirements of Section 83 of the Representation

of the People Act 1951 (hereinafter referred to as the 'Act')

to incorporate, material facts, in Election Petition are not

complied with.

3 The facts in, brief are that respondent no.1 was

declared, elected as the member of legislative assembly (for

short MLA) in the election held on 21 st October, 2019 (the

'Said Election', for short). Petitioner filed petition for

declaration, that the election of the respondent no.1 is void

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and deserves to be set aside, as he committed corrupt

practices as specified in part III of Chapter VII of the

Representation of Peoples' Act, 1951.

4 The Election Commission of India declared

general elections for the 2019 assembly constituency of the

State of Maharashtra by Notification 27th September, 2019.

The date of scrutiny of nomination papers was 8 th October,

2019. The date of election was 21 st October, 2019. The

result of the said election was declared on 24 th October,

2019.

5 The alleged corrupt practices, which returned

candidate, indulged into are as under:

(a) Petitioner came across concocted and doctored video

on What'sapp, on or about 8th October, 2019, wherein

speech delivered by him in 2016 was deliberately and

maliciously edited to portray him as an anti-national person

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as shown, giving slogans 'Pakistan Zindabad'. The said fake

video was circulated by the returned candidate on social

media from 14th October, 2019 till 21st October, 2019. The

said fake video was seen by large number of people of his

assembly constituency.

(b) That, the returned candidate, his agent or other

persons on his behalf including the leader of party of

respondent no.1, Shri Uddhay Thakarey addressed the

public meeting and was part of the procession in

connection with the said election on 20th October, 2019 at

9.15 p.m., which was within the period of 48 hours prior

to the hours fixed for conclusion of poll, which was

prohibited in terms of Section 126 of the said Act and

thereby violated Clause 8.2.1 of Chapter VIII of the Model

Code of Conduct, framed by the Election Commission. As a

consequence, returned candidate deliberately acted in

contravention of Section 126 of the said Act, and

committed acts, which fall within the mischief of Section

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100(1)(d)(v) of the Said Act.

6 The petitioner would assert and claim that the

false and doctored video was downloaded, by Vinod

Purshottam Chhatpal, from the facebook account of Mr.

Budol. Vinod Purshottam Chhatpal gave CD of doctored

video to the petitioner. Whereafter, Petitioner's chief

election agent lodged a written complaint. Afterwhich Saki

Naka Police Station registered FIR dated 14th October, 2019

under Section 125 and 171-G of the Indian Penal Code,

1860 against Mr. Budol. Petitioner would further assert

that, the members of Rajputana Community of his

Assembly Constituency consisting of 10,000 voters believed

the version of the said fake video clips and issued legal

notice to the petitioner on behalf of Akhand Rajputana

Sevasangh through their advocate on 17th October, 2019.

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Pleadings of Corrupt Practice relating to circulation of fake

video

7 In paragraph 12 of the Election Petition,

petitioner averred that; "in the circumstances mentioned

hereinafter, it was revealed that the said fake video clip

was published by the returned candidate as he was the

only beneficiary of the outcome of the circulation of such

false and fake video. Petitioner would, therefore, allege that

purpose of circulating fake, false and malicious news was

to defame the petitioner and to paint him as an anti-social

or anti-national person to deter the voters from voting in

favour of the petitioner."

8 On the grounds afore-stated, petitioner is seeking

a declaration that the election of the respondent no.1 as a

Member of Maharashtra State Legislative Assembly from the

constituency no.168 Mumbai Suburban District held on 21 st

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October, 2019 is null and void and also seeks declaration

that he be declared, as elected.

Application under Order 7 Rule 11(a)(b) of the CPC:

9 The respondent-returned candidate moved an

application seeking dismissal of the Election Petition, under

Order 7 Rule 11 (a) and (b) of the Civil Procedure Code,

1908 ('CPC' for short) on the ground that the petition does

not disclose the, cause of action, for want of 'material

facts', relating to Corrupt Practices.

10 Petitioner opposed the application vide reply

dated 23rd September, 2021.

11 Heard Mr. Shardul Singh, the learned counsel for

the petitioner and Mr. Girish Godbole, the learned senior

counsel for the respondent no.1.

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12 Mr. Singh the learned counsel for the

applicant/returned candidate, made the following

submissions:

(i) the averments, in paragraph 12 of the Petition,

that the returned candidate circulated the Fake Video on

social media, is imprecise, generalised and bereft of the

circumstances relating to material facts and therefore,

petition is not containing statement of "material fact".

(ii) although in paragraph no.12, petitioner averred

that in the upcoming paragraphs, he would narrate the

circumstances to show, as to how returned candidate

indulge into circulating Fake Video; yet no such

circumstances have been narrated, except vague allegations.

(iii) absolutely, there are not averments-pleadings,

showing and/or suggesting nexus between Mr. Budol (from

whose face-book account Fake Video was downloaded) and

the returned candidate to infer that Mr. Budol provided Shivgan

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Fake Video to returned candidate or to his agent.

(iv) "Source of Fake-Video" at the hands of returned

candidate has not been pleaded at all.

(v) absence of pleadings, as to link between Mr.

Budol and returned candidate and in absence of pleadings

as to source of Fake Video in the hands of returned

candidate, amounts to omission of 'Material Facts', on

which reliance is sought to be placed.

(vi) So far as, the offences in relation to breach of

Model Code of Conduct are concerned, according to Mr.

Singh, the petitioner has not pleaded at all, that, result of

election so far as it concerns returned candidate had been

materially affected by alleged non-compliance of the

'Orders' made under the Act.

(vii) That the pleadings in the Election Petition do

not disclose and/or even suggest as to how the alleged

breach of Model Code of Conduct has materially affected

result of the returned candidate.

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(viii) That omission of single 'material fact' would

lead to, incomplete cause of action and that Election

petition without the 'material facts' relating to corrupt

practice is not a Election Petition. In support of the

submissions, Mr. Singh has relied on the following

judgments:

(1) Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar

(2009) 9 SCC 310;

(2) C.P.John v. Babu M. Palissery and Others; (2014) 10

SCC 547;

(3) V. Narayanaswamy v. C.P. Thirunavukkarasu; (2000) 2

SCC 294;

(4) Samant N. Balkrishna and Anr. v. George Fernandez

and Others 1969(3)SCC 238;

(5) Dr. Rameshkumar Bapuraoji Gajbe v. Election

Commission of India, New Delhi and Others

[2020(5)Mh.L.J.328];

(6) L.R.Shivaramagowda and Others v. T.M.Chandrashekar Shivgan

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(Dead) by LRS and Others; (1999) 1 SCC 666

(7) Mangani Lal Mandal v. Bishnu Deo Bhandari; (2012) 3

SCC 314;

(8) Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541;

(9) Ashok s/o Mahdeorao Mankar v. Rajendra Bhausaheb

Mulak 2010(7) Mh.L.J.503.

13 Per contra, Mr. Godbole, the learned Senior

Counsel for the Election Petitioner would argue that

averments in the petition, contained, not only 'material

facts' but also 'material particulars'. Mr. Godbole by

relying on the judgment of the Apex Court in the Sardar

Harcharansingh Brar v. Sukhdarshan Singh 2004(11) SCC

196 would contend, that it is not requirement of law to

plead evidence or minute details of the corrupt practice.

Mr. Godbole vehemently submitted, if pleadings on

reasonable construction would sustain the action, the Court

should accept that construction. Further, Mr. Godbole relied Shivgan

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on the judgment of the Supreme Court in the case of Raj

Narayan v. Indira Nehru Gandhi 1972 (3) SCC 850 to

submit, that pleadings averred in paragraphs 7 to 12 of the

petition, if taken and read conjointly, would disclose all

basic and fundamental facts, as to constitute corrupt

practices, which returned candidate indulged into by

circulating fake video on the social media. Mr. Godbole,

submitted, details of the link between Mr. Bodul (from

whose face-book account, fake video was downloaded) and

the returned candidate or his agent were not required to be

particularised, as the link could be established, by leading

evidence in the trial and, therefore, such evidentiary facts

or details or its' particulars were not required to be

pleaded. In the alternative, Mr. Godbole submitted, if the

allegations regarding the corrupt practice did not disclose

essential part, of corrupt practice, the Court may allow

particulars of any corrupt practice alleged in to be amended

or amplified. Mr. Godbole, the learned Senior Counsel Shivgan

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would, therefore, rely on the provisions of Section 86(5) of

the Act to contend that if this Court is of the opinion that

full, "particulars", of the corrupt practice have not been

set out, petitioner be given an opportunity to amend or

amplify the particulars. Mr. Godbole, would, therefore, urge

that application moved by the returned candidate under

Order 7 Rule 11 of the CPC be rejected.

14 The primary issue in this case is, whether

Election Petition discloses complete cause of action.

15 The word 'Material facts', in the context of the

charge of corrupt practice would, mean basic facts

constituting ingredients of particular corrupt practice.

Settled law is that, all the material facts must be pleaded

by the party in support of the case. The object, is to

enable the opposite party to know the case he has to meet

with. That omission to plead single 'material fact' leads to Shivgan

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incomplete cause of action and statement of claim becomes

bad as held by the Hon'ble Supreme Court in the case of

Samant N. Balkrishna (Supra). To, ascertain, whether

petitioner has omitted to plead material facts, I have gone

through the pleadings in the Petition.

16 Petitioner, pleads in paragraph 7, that he came

across video clip on the What's app on or about 8 th

October, 2019, i.e., twelve days before polling day. He had

noticed that, his speech was deliberately and maliciously

edited to portray him as 'anti-national person, shouting

"Pakistan Zindabad". According to the petitioner, speech

delivered by him in May, 2016 was deliberately distorted

by maliciously editing the same into the fake video. That

video was downloaded by Shri Vinod Purshottam Chhatpal

and copied in CD from face-book account of Mr. Budol. In

paragraph 8, petitioner pleaded, the fake video was Shivgan

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circulated on social media from 14 th October, 2019 till 21st

October, 2019 showing petitioner uttering "Pakistan

Zindabad". The said video went viral. As a result, the

petitioner was bombarded with questions relating to fake

speech, from press and voters from the constituency. In

paragraph 9, petitioner pleaded, that his Chief Election

Agent lodged the complaint dated 8th October, 2019 to the

local police station; after which First Information Report

was registered on 14th October, 2019 against Mr. Bodul. In

paragraph 10, petitioner pleaded, as to how fake video has

influenced voters in constituency. In paragraph 11, the

petitioner pleaded that various newspapers and electronic

media, after ascertaining the correct facts, published news

relating to said fake video.

17 It, therefore, follows that in paragraphs 7 to 11,

the petitioner has neither pleaded, that his speech was

deliberately edited by returned candidate or his agent nor Shivgan

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pleaded that fake video was circulated on social media by

the returned candidate or his agent nor he pleaded the

nexus between Mr. Bodul and the returned candidate or

link between Mr. Bodul and agent of the returned

candidate. For all that, in paragraph 12, petitioner pleaded,

that by letter dated 8th October, 2019, he made complaint

to Returning Officer, against Mr. Bodul for taking

appropriate action including registering cyber crime against

him. Be it noted, even the complaint, does not imply or

suggest or show the connection between Mr. Bodul and

returned candidate. Having said that in the same paragraph

(Paragraph No.12), petitioner averred; that "in the

circumstances mentioned hereinafter, it is revealed that said

fake video was published by the returned candidate

(emphasis supplied) as he was the only beneficiary of the

outcome of the circulation of such false and malicious

news, which did not only tarnish the image of the

petitioner in the eyes of the public but prejudiced the Shivgan

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minds of the voters and the sole purpose of circulating the

fake and false news was to defame the petitioner and to

paint him as an 'anti-social' or 'anti-national' person to

deter the voters from voting in favour of the petitioner."

Be it noted that neither in paragraph 12 nor in the

subsequent paragraphs, petitioner averred or pleaded the

'circumstances', (emphasis supplied) wherefrom he gathered

and/or inferred that the returned candidate circulated the

Fake Video. Therefore, allegations that returned candidate

circulated the fake video, to malign petitioner's reputation,

were vague and indefinite for want of related facts. As a

matter of fact, petitioner has not pleaded foundational

facts, like source, wherefrom the Fake Video was procured

by the returned candidate. For that reason, in absence of

pleadings as to source of video at the hands of the returned

candidate and in absence of pleadings as to reveal link

between Mr. Bodul and returned candidate, it cannot be

said that petition was containing concise statement of Shivgan

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"material facts". On the contrary, pleadings in paragraph

12, that the petitioner circulated the Fake Video, are

vague, uncertain and made in casual manner.

18 Section 83 of the act, speaks of contents of the

petition. Clause (a) of Sub-section (1) of Section 83 states,

that an Election Petition shall contain a concise statement

of material facts on which the petitioner relies upon;

Whereas, Section 100 of the act spells out, grounds for

declaring the election to be void. Clause (b) of Sub-section

(1) of Section 100 states, "if the Court is of the opinion,

that any corrupt practice has been committed by returned

candidate or his election agent or by any other person with

the consent of the returned candidate or his election agent,

the Court shall declare the election of the returned

candidate to be void." The expression "Opinion" means,

view point, belief or point of view or impression. That

being the case, to form an opinion that corrupt practice has Shivgan

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been committed by the returned candidate, petition must

contain concise statement relating to corrupt practice.

Indisputably, petition neither reveals as to how and from

whom, the returned candidate procured the Fake Video nor

the pleadings reveal, connection or link between Mr. Budol

and the returned candidate. Therefore, in absence of these

fundamental Pleadings, Court is unable to form 'opinion' as

to complicity of the returned candidate in committing the

corrupt practices, envisaged under Section 83(1)(a) of the

Act.

19 Mr. Godbole, the learned Senior Counsel rightly

argued, that, whether a particular fact is 'material' or not

and as such, required to be pleaded, is dependent on the

nature of charge levelled and the circumstances of the

case. Still, in the case in hand, absence of pleadings as to,

link between Mr. Bodul and the returned candidate and as

to source of Fake Video at the hands of the returned Shivgan

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candidate, leads me to hold, that Petition does not disclose

'complete cause of action'. Now, let me refer to few

rulings, on the subject i.e. which facts are material and

what constitutes 'material facts'; necessity to plead and

effect of non-pleadings. In the case of Anil V. Salgaonkar

(Supra), the Hon'ble Apex Court has held in paragraphs 57,

58 and 60 as under:

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

58. There is no definition of "material facts" either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action.

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60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election petitioner (the respondent herein) and the election petition is liable to be summarily dismissed on that ground. "

. In the case of C.P.John (Supra), the Hon'ble Supreme

Court has analysed Section 83 of the Act and held in

paragraph 18;

"18. When we read Section 83, the substantive part of Section 83(1) consists of three important elements, namely, that an election petition should contain a concise statement of material facts which an election petitioner relies upon. The emphasis is on the material facts which should be stated in a concise form. Under Section 83(1)(b) it is stipulated that the election petition should set forth full particulars of any corrupt practice which is alleged by the petitioner. A reading of the said Section 83(1)(b) is to the effect that such particulars should be complete in every respect and when it relates to an allegation of corrupt practice it should specifically state the names of the parties who alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, the particulars relating to corrupt practice should not be lacking in any respect. One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as the names of the persons, the nature of the alleged corrupt practice indulged in by such person or persons, the place, the date, the time

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and every other detail relating to the alleged corrupt practice."

20 In the case of V. Narayanswamy (Supra), , the

Hon'ble Apex Court has ruled on "Source of information in

respect of commission of Corrupt Practices;

"23.........For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non- compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub- section (1) of Section 83. Then under clause (b) of sub-

section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and

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which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail."

21 Thus, law enunciated by the Hon'ble Apex Court

in the aforesaid authorities is, that facts, which are

essential to disclose a complete cause of action, are

'material facts' and are essentially required to be pleaded.

Likewise, ruled that Petition levelling charge of Corrupt

Practice, is required by law, to disclose his source of

information in respect of commission of Corrupt Practice.

The Three Judge Bench in Mahendra Pal 2001 SCC 261 has

ruled that;

(i) function of 'particulars', is to present full picture of

cause of action to make the opposite party to understand

the case that has been set up against him and which is Shivgan

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required to meet;

(ii) distinction between the 'material facts' and 'material

particulars' is indeed important because different

consequences follow from deficiency of such facts or

particulars in the pleadings;

(iii) failure to plead even single 'material fact' leads to

incomplete cause of allegations of such charge and it is

liable to be struck off under Order 6 Rule 16 of the CPC;

WHEREAS;

(iv) if petition, suffers from deficiency of material

particulars, the Court has discretion to allow the petitioner

to supply required particulars, even after expiry of

limitation period;

(v) Although it may be permissible for party to furnish

particulars even after period of limitation for filing election

petition has expired with the permission of the Court;

(vi) however, no material fact unless pleaded, can be

permitted to be introduced after expiry of period of Shivgan

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limitation.

22 Given the above conspectus of case-laws, as to

the pleadings on the "material facts" and omissions to

plead "material facts" and consequences thereof, in my

view, pleadings relating to corrupt practice of circulating

the Fake Video were incomplete in-as-much as petitioner

has neither pleaded nor shown nor disclosed, source of

Fake Video in the hands of the returned candidate nor

pleaded nexus between Mr. Budol and the returned

candidate. These were not just omissions but were

thoroughly deficient of material facts as, to form opinion

that Fake Video was circulated by the returned candidate

on social media to tarnish the image of the petitioner.

Therefore, as Petition omits to plead "material facts", and

not 'particulars' recourse to Section 86(5) of the act cannot

be taken as suggested by Mr. Godbole, the learned Senior

Counsel appearing for the petitioner. Shivgan

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23 Petitioner's case is not only confined to non-

disclosure of 'material facts', in terms of Section 83(1)(d)

but also to violation of Section 100(1)(d)(iv) of the said Act.

The said Section is extracted as below;

"100. Grounds for declaring election to be void.-- [(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion--

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [* * *] [or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of

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any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void]"

Thus, to get an election declared as void under the said

provision, the election petitioner must aver that, on account

of non-compliance with the provisions of the constitution or

of this Act or of any rules, orders made under the Act, the

results of the election in so far as it concerns returned

candidate was materially affected . Here, it is petitioner's

case that returned candidate has committed Corrupt

Practices as well as committed electoral offences and,

therefore, returned candidate was required to be declared

as disqualified. Petitioner in Paragraph 28 of the Petition

averred that, unlawful campaign during prohibited 48 hours

of the election by Uddhav Thakarey and others resulted in

unlawful election process, which resulted in, election of the

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returned candidate by thin margin of 409 votes. In

paragraph 29, 30, 31 and 32, petitioner pleaded that illegal

election campaign by the senior leader of Shivsena, has

influenced voters to vote for returned candidate. Therefore,

it is petitioner's case that the alleged violation of the

orders/model code of conduct, resulted in election of

respondent no.1 by margin of 409 votes. Section 100(1)(d)

(iv) requires pleadings as to how alleged illegal campaign

caused voters to vote in favour of the returned candidate.

Thus, pleading of this material fact of link between illegal

election campaigning and victory of returned candidate by

margin of 409 votes was essential 'fact'. Thus, to say that

unless such link is pleaded, it was not possible to frame

the triable issue. Factually speaking, averment in

paragraphs 28,29,30 and 31 of the Petition, are simply

expressing "possible view of the petitioner; without

pleading link. Therefore, in absence of link between alleged

violation of model code of conduct and victory of returned Shivgan

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candidate, how the petitioner, could assert that, because of

alleged violation of 'Model Code of Conduct, four hundred

and nine voters, caste their votes to returned candidate. In

fact, petitioner has simply reproduced, text of Section

1000(1)(d)(iv) of the Act and nothing more. Averments in

paragraph no.28 and onwards, simply suggest that the

petitioner just undertook and launched roving and fishing

enquiry without concrete material with them. Additionally

mere 'chance' or 'likelihood' of voters being influenced by

illegal campaigning would not constitute essential fact, to

contend that illegal campaigning materially affected the

election result of the returned candidate. In the context of

the facts of the case, ruling in the case of Ram Sukh v.

Dinesh Aggarwal (2009) 10 SCC 541 has been rightly relied

upon by Mr. Singh wherein the the Apex Court observed

thus,

"24 It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what Shivgan

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manner the result of the election insofar as it concerned the first respondent was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition."

24 For the foregoing reasons, I hold that petitioner

has failed to, plead material facts, resulting into

'incomplete cause of action'; amounting disobedience of

mandate of Section 83(1)(a) and 100(1)(d)(iv) of the Act.

25 As a result, the application is allowed and in

consequence, Election Petition is rejected.

26 Since the Election Petition itself is disposed of,

nothing survives in the Application (L) No.17416 of 2021

and same is also disposed of.

(SANDEEP K. SHINDE,J.)

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