Bombay High Court
Kirtikumar Dattatray Shivsharan vs Shri. Sha. Bra. Dr. Jai Siddheswar ... on 1 April, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-OS:5490 AEPL-31043-2023.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION [L] NO.31043 OF 2023
IN
ELECTION PETITION NO.1 OF 2019
Shri Sha Bra Dr. Jaisiddeshwar ]
Shivacharya Mahaswamiji @ ]
Nurandswami Gurubasayya Hiremath ]
Age: 63, Occ. Farmer, ]
R/o. Sansthan Hiremath, Gaudgaon (BU) ]
Mukkam Post: Mauje Gaudgaon, ]
Tal. : Akkalkot, Dist: Solapur - 413227. ] APPLICANT
IN THE MATTER BETWEEN:
Kirtikumar Dattatray Shivsaran ]
Age: 26, Occupation : Student ]
Opp. Dr. Ambedkar Udyan, ]
41/187, New Budhwar Peth, ]
Anand Chowk, Solapur, ]
Maharashtra : 413 002. ] PETITIONER
V/s.
Shri Sha Bra Dr. Jaisiddeshwar ]
Shivacharya Mahaswamiji @ ]
Nurandswami Gurubasayya Hiremath ]
Age: 63, Occ. Farmer, ]
R/o. Sansthan Hiremath, Gaudgaon (BU) ]
Mukkam Post: Mauje Gaudgaon, ]
Tal. : Akkalkot, Dist: Solapur - 413227. ] RESPONDENT
a/w
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ELECTION PETITION NO.1 OF 2019
a/w
AEP [L] NO.26326 OF 2023
A/W
AEP [L] NO.28041 OF 2023
IN
ELECTION PETITION NO.1 OF 2019
Kirtikumar Dattatray Shivsaran ]
Age: 26, Occupation : Student ]
Opp. Dr. Ambedkar Udyan, ]
41/187, New Budhwar Peth, ]
Anand Chowk, Solapur, ]
Maharashtra : 413 002. ] PETITIONER
V/s.
Shri Sha Bra Dr. Jaisiddeshwar ]
Shivacharya Mahaswamiji @ ]
Nurandswami Gurubasayya Hiremath ]
Age: 63, Occ. Farmer, ]
R/o. Sansthan Hiremath, Gaudgaon (BU) ]
Mukkam Post: Mauje Gaudgaon, ]
Tal. : Akkalkot, Dist: Solapur - 413227. ] RESPONDENT
.....
Mr. S.R. Ganbavale a/w Mr. Kush M. Lahankar i/b Mr. Abhijit Patil,
for Applicant.
Mr. Prakash Ambedkar i/b Mr. Sandeep Rankhambe, for
Respondent.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 4th JANUARY, 2024.
PRONOUNCED ON : 1st APRIL, 2024.
ORDER:
1. This is an application moved by the applicant - returned
candidate - Sha Bra Dr. Jaisiddeshwar Shivacharya Mahaswamiji @
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Nurandswami Gurubasayya Hiremath under Order - VII, Rule - 11
(a) and (d) of the Code of Civil Procedure, 1908 (for short "C.P.C")
for rejection of the Election Petition on the ground that the petition
neither discloses any cause of action nor is in compliance with the
provisions of Section 81 (3) of The Representation of the People
Act, 1951 (for short "Act").
2. Applicant is the original respondent in the Election Petition
whose election to 42nd Solapur (SC) Lok Sabha General Election
Constituency, 2019 has been challenged by the respondent (original
petitioner) by stating that the said election is void.
3. The applicant, upon receiving summons in the Election
Petition filed a written statement accompanied with certain
documents.
4. It is contended that the entire Election Petition hinges on a
single allegation, namely the vulnerability of Electronic Voting
Machines (EVMs) employed in general elections. The respondent-
original petitioner contended that discrepancy of 132 votes existed
between the votes cast and the votes counted.
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5. The applicant contends that the respondent's Election Petition
lacks specific allegations and primarily serves as a platform to
address the issue of EMV usage in the electoral process. According
to the applicant, this matter is akin to a Public Interest Litigation.
6. It is the specific contention of the applicant that there is non
compliance of Section 81 of the Act. Section 81, sub-section (3)
mandates that every Election Petition shall be accompanied by as
many copies thereof as there are respondents mentioned in the
Election Petition and every such copy shall be attested by the
petitioner with his own signature to be a true copy of the petition.
The applicant, therefore, states that till this date, the respondent has
failed to provide a copy of the original Election Petition and,
instead, has served an amended version. Even the amended Election
Petition lacks attestation by the respondent under his own signature
to confirm it's accuracy as a true copy of the original petition.
Neither the respondent nor his legal Counsel have affixed their
signatures to the Election Petition or it's annexures as "True Copy".
Original copies of the Election Petition were never provided to the
applicant. Copies of the amended Election Petition also lack
original signature of the respondent anywhere on the Election
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Petition or it's annexures. It is further contended that non
compliance or failure to attest the copies under his original
signature as "True Copy" is fatal in the maintainability of the
Election Petition. Election Petition, on this ground, alone is liable
to be rejected under Section 86 (1) of the said Act.
7. It is further contended that the Election Petition is liable to be
dismissed on the ground of non joinder of necessary parties as
contemplated under Section 82 of the Act since, admittedly, the
respondent has not joined all the candidates who contested the said
election of 42nd Solapur Lok Sabha General Constituency, 2019.
8. It is contended that cause title of the Election Petition
admits that the respondent is an ordinary resident of New
Budhwar Peth, Anand Chowk, District Solapur. However, the
entire Petition is devoid of any pertinent information as to how
the respondent has been aggrieved by the election of the
applicant as a Member of Parliament from the 42 nd Solapur
Lok Sabha General Elections in 2019. Additionally, the Election
Petition fails to provide any details as to whether the respondent has
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exercised his right to vote in Solapur during the said General
Elections. The Election Petition is liable to be dismissed on this
count also.
9. The applicant further contends that the Election Petition is
also liable to be dismissed on the ground that there are no
averments as to whether the respondent exercised his right to vote
in Solapur during the said general elections. The applicant contends
that the respondent averred non compliance of the provisions of
Section 65 of the Act and corrupt practice by the Election
Commission of India as well as Returning Officer thereby benefiting
the applicant, however, no material facts or particulars have been
pleaded in respect of the aforesaid allegations. He would argue that
material fact herein is the EVM Machine. The Election Petition
deserves to be dismissed for non disclosure of any cause of action
for filing the Election Petition as contemplated under Order - VII,
Rule - 11 (a) of the C.P.C.
10. According to the applicant, the Election Petition notably lacks
any mention or substantive discourse concerning the concept of
"Corrupt Practice", which holds significance in the context of
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Election disputes, as defined under Sections 1, 2 and 3 of the Act.
The Election Petition also lacks details of any alleged corrupt
practice, in the sense, the respondent has not addressed or
elucidated upon any potential instances or allegations of conduct
that might fall within the ambit of corrupt practices, as defined and
prescribed by the statutory provisions under the Act. Even if
paragraphs 4 to 11 are taken into consideration at it's face value, no
cause of action is disclosed, much less, grounds under Section 100
of the Act. It is contended that there is not a single material fact or
particular pleaded by the respondent in support of his grievance set
out in paragraph 3 of the Election Petition, or for that matter,
anywhere in the Election Petition. The Election Petition, therefore,
deserves to be dismissed.
11. According to the applicant, mere non compliance of the
provisions of the Act cannot serve as a ground for filing an Election
Petition unless and until it is specifically pleaded that the election's
outcome, as it pertains to a returned candidate, has been materially
affected. The applicant states that upon reviewing the Election
Petition, it is evident that the respondent has not pleaded anywhere
in the petition that election's result, concerning the applicant, has
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been materially affected due to non compliance with the provisions
of Section 65 of the Act. The respondent has failed to plead even a
single material fact or particular about alleged corrupt practice on
the part of the Election Commission of India and the Returning
Officer. There is even no pleading in respect of a single material fact
or particular about any benefit received by the applicant. None of
the allegations of corrupt practice alleged by the respondent falls
within the purview of Section 123 of the said Act. It has not been
pointed out under which ground of Section 100 the allegations of
corrupt practice fall.
12. It is further stated that an affidavit filed by the respondent is
not in the prescribed form as provided by the Act and the rules
framed thereunder in support of the allegations of corrupt practice.
Affidavit filed by the respondent is not an affidavit in the eyes of
law and, hence, failure to file an affidavit in requisite form, both in
form and substance, is fatal to the maintainability of the Election
Petition.
13. Paragraphs 5 to 7 of the Election Petition do not contain
any single material fact or particular about alleged corrupt
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practice falling within the purview of Section 123 of the said
Act.
14. There is no averment in the Election Petition establishing the
applicant's status as an "Elector" as envisaged under Section 21 of
the Act.
15. Amendment carried out by the respondent in the Election
Petition by adding paragraphs 31 (A) to 31 (D) is without any order
of this Court granting leave to amend the Petition. This is in breach
of Rule - 150 of the Bombay High Court (Original Side) Rules. The
applicant states that there is non compliance of mandatory
provisions of Section 81 (3) of the Act.
16. The applicant has placed reliance on a judgment of the
Supreme Court in case of Dahiben Vs. Arvind Bhai, 2020 (7)
Supreme Court Cases, 366 wherein it is held that powers under
Order VII - Rule 11 of C.P.C. may be exercised by the Court at any
stage of the suit, either before registering the plaint, or after issuing
the summons to the Defendants, or before conclusion of the trial.
The plea that once issues are framed, the matter may not necessarily
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go to trial cannot be accepted. The applicant has, therefore, prayed
for rejection of the Election Petition.
17. In his reply, the respondent has raised several objections and
grounds to reject the application under Order-VII, Rule-11 of the
C.P.C. It is contended that the Returning Officer appointed by the
Election Commission of India is entrusted with the responsibility of
safe custody of the Electronic Voting Machines. Custody of the
Electronic Voting Machines is also the responsibility of the
Returning Officer/District Election Officer. The Returning Officer
of Lokshabha Constituency of 42nd Solapur admitted in his
Affidavit-in-Reply to the Election Petition that there is a difference
in the polled votes and the counted votes. Non tallying of votes is
in contravention of Section 65 of the Act. It is contended that the
applicant has not approached this Court with clean hands as
application seeking rejection of the Election Petition under Order-
VII, Rule-11 of the C.P.C itself is not tenable since despite service of
the Election Petition upon the applicant on 10 th July, 2019, a reply
came to be filed on 8 th August, 2023 i.e nearly after 1490 days. In
view of Order-VIII, Rule-1 of the C.P.C, written statement is to be
filed within 30 days of receipt of summons. The Court may extend
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time by 90 days. As such, the application which has been filed after
such a long delay needs to be rejected.
18. The respondent contends that the declaration of the election
result without verifying whether the polled votes and counted votes
are equal amounts to subversion of the rules and directions issued
by the Election Commission under Article 324 of the Constitution
and is the crux of the present Election Petition. There is non
compliance of Section 65 and 66 of the Act as well as Rules and
directions of the Election Commission. It is not true that the
respondent has not complied with the requirement of Section 86 (1)
of the Act. Contention of the applicant as regards non compliance
of Section 81 (3) of the Act is misleading and tantamount to casting
aspersion on the office of this Court. The respondent contends that
he had filed six photo copies of the Election Petition before Master
and Prothonotary (Judicial) of this Court. Each copy is attested by
the respondent under his own signature to be a true copy. The duly
attested copies have been served upon the applicant through
Registered Post Acknowledgment Due. The allegations levelled by
the applicant are, thus baseless and frivolous.
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19. The respondent has referred sub-clause 15.30. The Election
Commission of India has framed rules. The said rules provide that if
there is a difference between polled votes and counted votes then
the matter should be referred to the Election Commission of India
and after receiving the directions from the Election Commission of
India, result shall be declared as per it's directions. Thus, averments
set out in the Election Petition, according to the respondent, are
quite relevant.
20. Material fact and legal corruption mentioned by the
respondent in the Election Petition falls within the purview of
Section 100, sub-section-1 (d) (ii) and (iv) of the Act. The
respondent has referred Rule - 986 of the Bombay High Court
Original Side Rules as well as the rules framed in regard to election
petitions i.e Rule - 8 of the Election Petition Rules.
21. It is further contended that Sections 86, 108 and 116 of the
Act lay down requirement for dismissal of the Election Petition.
Once such provision is enacted in the Act, provisions of the C.P.C
cannot be applied. The respondent has, therefore, prayed for
dismissal of the application with costs.
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22. I heard Mr. Ganabavale, learned Counsel for the applicant as
well as Mr. Ambedkar, learned Counsel for the respondent at a
considerable length.
23. The salient features highlighted by Mr. Ganbavale in support
of his contention of rejection of the Election Petition are multiple,
however, the main contention is that not only the Election Petition
needs to be rejected in view of Order-VII, Rule-11 (d) of the C.P.C
but also for non compliance of Sections 65, 82 and 86 (1) of the Act
as well as for want of grounds which are required to be stated in
view of Section 100 (1) (b) of the said Act. He would argue that no
material facts or particulars are pleaded in respect of the allegations
of corruption by the respondent. There is non compliance of Rule-
94-A of the Conduct of Election Rules, 1961.
24. Mr. Ganbavale would further argue that there are several
averments in the Election Petition which are factually incorrect,
meaning thereby, the respondent had never contested the election
and, therefore, the Election Petition cannot be continued on that
ground also. He would argue that it is not known whether the
respondent was an elector or a candidate for the elections of
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Loksabha Constituency of 42nd Solapur General Elections which
were held on 29th April, 2019. Certain bald statements are made in
the Election Petition sans affidavit as per the requirement of Form
No.25. Mr. Ganbavale has taken me through the contents of the
Election Petition, threadbare, to highlight various lacunae and as
such, prayed for dismissal of the Election Petition. In support of his
contention, Mr. Ganabavale has placed reliance upon following
three decisions;
(a) Eldeco Housing and Industries Limited Vs.
Ashok Vidyarthi and others, (2023 SCC Online
SC 1612);
(b) Kamala and others Vs. K.T. Eshwara SA
and others;
(c) Dahiben Vs/ Arvindbhai Kalyanji Bhanusali
through Legal Representatives, (2020) 7 SCC
in regard to Order-VII, Rule-11(d) of the C.P.C.
25. Mr. Ambedkar, learned Counsel for the respondent
vehemently argued that the Election Petition involves a very vital
point of national importance wherein the authenticity of Electronic
Voting Machines is in question. He would invite my attention to
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Section 100 (1) (d) (ii) and (iv) and 100 (2) (d) of the Act by
contending that election of the aforesaid Constituency had been
materially affected by corrupt practices committed in the interest of
the applicant - returned candidate. Apart from the aforesaid fact,
there was non compliance of the provisions of the Constitution as
well as as the Act.
26. While countering the arguments of Mr. Ganbavale, Mr.
Ambedkar would contend that the Election Petition contains concise
statement of all the material facts on which it relies. Particulars of
corrupt practices have been averred in the petition, more
particularly, in paragraphs 5 and 6. Mr. Ambedkar would invite my
attention to clause (b) of Article 329 of the Constitution of India
which bars jurisdiction of Court in election matters. He would
argue that it is not the statutory but a constitutional right to
challenge the Election and, therefore, application as moved by the
applicant - returned candidate belatedly, is only in order to thwart
the Election Petition.
27. As far as cause of action is concerned, learned Counsel would
submit that since there is breach of duty not only on the part of the
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the Election Commission but also on the part of the Returning
Officer which, in fact, is a cause of action to file the present
Election Petition. He would argue that the Returning Officer
committed breach of the duty in not referring the matter to the
Election Commission but, declared the result and, therefore, it gave
rise to a cause of action. Mr. Ambedkar would, however, submit
that there are no specific allegations of corrupt practices. According
to him, act of the Election Commission being "partisan" amounts
to corrupt practice.
28. The learned Counsel would further contend that the written
statement has not been filed within 90 days as it has been delayed
by a considerable period and, therefore, it cannot be heard to say
that the Election Petition needs to be rejected under Order-VII, Rule
- 11 (d) of the C.P.C. It is submitted that there are no averments in
the written statement as regards non mention of material facts in
the Election Petition. Mr. Ambedkar would argue that since the
evidence of Returning Officer has already been recorded on 22 nd
August, 2023 and in his evidence, the Returning Officer admitted
difference of votes being "technical mistake", it would not be
appropriate to reject the Election Petition at this stage. The Counsel
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has emphasized that will of the people has not been reflected in the
aforesaid election but it was the will of the Electronic Voting
Machines which is against the principles of democracy. Entire
exercise of the applicant, according to Mr. Ambedkar, is only to
stall the proceedings with an ulterior motive, especially when a
witness has already been examined. He submits that in view of Rule
- 9 (Appendix - II) of the High Court Original Side Rules, there is
due compliance of Sections 83 and 86 of the Act.
29. Learned Counsel has invited my attention to Rule-11 of the
High Court Original Side Rules vis-a-vis Section 97 of the Act
which contemplates recrimination when seat claimed. The Counsel
has, therefore, prayed for rejection of the application.
30. Before adverting to the averments in the Election Petition, it
would be expedient to have a quick look at the provisions of Order-
VII, Rule-11 (a) and (d) of the C.P.C. The underlying object of
Order-VII, Rule - 11 (a) and (d) is that if in a suit, no cause of
action is disclosed, or the suit is barred by any law, the Court would
not permit the plaintiff to unnecessarily protract the proceedings in
the suit or in the petition so that further judicial time is not wasted
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if on the minute reading of the petition it is found that the same is
found without any merit and does not disclose any right to sue, then
the Court would be justified in exercising powers under the said
provisions. It is equally true that the powers under Order-7, Rule-
11 can be exercised by the Court at any stage of the suit either
before registering the plaint, or before issuing summons to the
defendant/respondent or before conclusion of the trial. Learned
Counsel for the applicant has, therefore, rightly placed useful
reliance upon a latest judgment of the Supreme Court in the case of
Eldeco Housing and Industries Limited Vs. Ashok Vidyarthi and
others,1. The Supreme Court has drawn support from it's earlier
decisions while discussing the scope of Order-VII, Rule-11 of the
C.P.C.
31. Mr. Ganbavale has strenuously urged to dismiss the Election
Petition on the ground that not only it does not disclose cause of
action or a triable issues but there is non compliance of various
sections of the Act viz: Section 65, 81 (3) and 82. Section 82 of the
Act reads thus;
"82. Parties to the petition.- A petitioner shall
join as respondents to his petition -
1 (2023) SCC Online SC, 1612.
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(a) where the petitioner, in addition to
claiming a declaration that the election of all or
any of the returned candidates is void, claims a
further declaration that he himself or any other
candidate has been duly elected, all the
contesting candidates other than the petitioner,
and where no such further declaration is
claimed, all the returned candidates; and
(b) any other candidate against whom
allegations of any corrupt practice are made in
the petition".
32. Admittedly, the respondent has not joined all the candidates
who contested the said Election of 42nd Solapur (SC) Loksabha
Constituency, 2019 which is mandatory and, therefore, the Election
Petition can be dismissed in view of Section 86 of the said Act. Mr.
Ganbavale has invited my attention to the photostat copy of final
result of the election to the house of the people from 42 _ Solapur
(SC) Parliamentary Constituency. Final result sheet indicates 13
candidates who were in the fray. Applicant - Sha Bra. Dr. Jai
Siddeshwar Shivachary Mahaswamiji secured highest number of
votes. Admittedly, except respondent's candidate viz: Prakash
Yashwant Ambedkar, none of other candidates who contested the
said election have been joined for the reasons best known to the
respondent. Section 86 provides that the High Court shall dismiss
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an election petition which does not comply with the provisions of
section 81 or section 82 or section 117 of the Act. There is no
satisfactory answer to this argument of the learned Counsel for the
applicant. The Election Petition, thus, can be dismissed in view of
section 86 of the Act.
33. It is the contention of Mr. Ganbavale that the title clause of
the Election Petition reveals that respondent is an ordinary student
residing opposite Dr. Ambedkar Udyan, 41/187, New Budhwar
Peth, Anand Chowk, Solapur. A bare look at the Election Petition
reveals no information as to how and in what manner, the
respondent is aggrieved by the aforesaid general election of the
applicant as a Member of Parliament from 42 nd Solapur General
Elections, 2019. The Election Petition is sans any averments as to
whether the respondent exercised his right to vote during the said
election. Section 81 of the Act reads thus;
"81. Presentation of petitions.- (1) An election
petition calling in question any election may be
presented on one or more of the grounds specified
in [sub-section (1) of section 100 and section 101
to the [High Court] by any candidate at such
election or any elector [within forty-five days from,
but not earlier than, the date of election of the
returned candidate, or if there are more than one
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returned candidate at the election and the dates of
their election are different, the later of those two
dates].
34. It is apparent from the plain language used in Section 81 (1)
that when an election is called in question in an Election Petition, it
should contain one or more grounds specified in sub-section (1) of
Section 100 and section 101 by any candidate at such election or
any elector. Admittedly, the respondent was not a candidate. It is
not even shown that he was an "Elector", meaning thereby, he had
entitled to vote at the election to which the Election Petition relates,
whether he has voted at Election or not. There is absence of even
this important aspect in the Election Petition as to whether the
respondent had voted at such election or not. The Election Petition,
thus, can also be dismissed in view of Section 86 of the Act.
35. Interestingly, before amending the petition as late as on 15 th
December, 2023, it has been contended by the respondent that he
had duly contested the election which is factually incorrect.
Subsequently, petition came to be amended and the word
"campaigned" has been substituted by deleting the words "he
had duly contested". This itself indicates that the earlier
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averment as regards contesting aforesaid election was factually
incorrect.
36. Mr. Ganbavale has also invited my attention to one more
interesting aspect of this case wherein the candidate on whose
behalf the election petition has been filed himself is an arguing
Counsel namely Mr. Prakash Ambedkar. I will not venture into that
aspect as the moot point in this case is tenability of the petition in
view of Order-VII, Rule-11 of the C.P.C.
37. The next important point which needs to be seen is as to
whether the Election Petition, in its entirety, depicts any material
facts or particulars pertaining to the alleged non compliance of
mandatory provisions and directions issued under Section 65 of the
Act as well as any material fact's relating to the allegation of corrupt
practice by the Election Commission of India and the returning
Officer resulting into benefiting the returned candidate.
38. Section 83 of Act reads as under;
"83. Contents of petition.-(1) An election
petition-
(a) shall contain a concise statement of the
material facts on which the petitioner relies;
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(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges,
including as full a statement as possible of the
names of the parties as alleged to have committed
such corrupt practice and the date and place of
the commission of each such practice; and
(c) shall be signed by the petitioner and
verified in the manner laid down in the Code of
Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings:
[Provided that where the petitioner alleges any
corrupt practice, the petition shall also be
accompanied by an affidavit in the prescribed
form in support of the allegation of such corrupt
practice and the particulars thereof.]
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and verified
in the same manner as the petition]".
39. It would be interesting to see as to whether the Election
Petition contains a concise statement of material facts as regards
alleged non compliance of mandatory provisions and/or corrupt
practices and whether full particulars of any such corrupt practices
have been put forth or averred in the Election Petition?
40. A proviso to Section 83 (1) is important, in the sense, when
there are allegations of any corrupt practices, the Election Petition
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shall also be accompanied by an affidavit in the prescribed form in
support of the allegation of such corrupt practices and the
particulars thereof. Mandate of stating material and comprehensive
particulars of any alleged corrupt practices, including a full
statement as well as the names of the parties alleged to have
committed such corrupt practice/s, along with date and place of the
alleged commission of each such practice is essential. The Election
Petition notably lacks any mention or substantive disclosure
consisting the details of "corrupt practices" which holds significance
in the context of election disputes as defined under Section 123 of
the Act.
41. Learned Counsel has not been able to point out under which
of the clauses of section 123 of the Act alleged corrupt practices
have been committed by the Election Commission of India and the
Returning Officer.
42. The respondent has not elucidated upon any potential
instances or allegations of conduct that might fall within the ambit
of the 'corrupt practice' as defined and prescribed by the
aforementioned statutory provisions. It was incumbent upon the
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respondent, in accordance with the required requirements and
precedents, to provide comprehensive examination and
substantiation of any such allegations or implications of "corrupt
practices" to establish a valid cogent Election Petition.
43. A conjoint reading of paragraph 4 to 11 of the Election
Petition would indicate no cause of action, much less, any grounds
as stipulated in Section 100 of the Act. Mr. Ambedkar, learned
Counsel for the respondent, however, tried to convince me by
inviting my attention to clause (1) (d), (ii) and (iv) of Section 100 by
contending that the Election Petition is based on these points.
Section 100 (1) (d) provides that subject to the provisions of sub-
section (2) if the High Court is of the opinion that the result of the
election, in so far as it concerns a returned candidate, has been
materially affected, (ii) by any corrupt practice committed in the
interests of the returned candidate by any agent other than his
election agent, and clause (iv) contemplates that by any non
compliance with the provisions of the Constitution or of this Act or
of any rules or orders made under this Act. There are no averments
in the Election Petition, as already stated, as regards any corrupt
practices committed in the interest of the returned candidate either
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by the Election Commission of India or Returning Officer. It is not
the case of the respondent that any agent other than the election
agent of the applicant has committed any corrupt practice. I am
afraid, I cannot buy arguments of Mr. Ambedkar that the material
facts of the alleged corrupt practice have been incorporated and
pleaded in paragraphs 5 and 6 of the Election Petition which is
reproduced hereinbelow;
"5. In the Loksabha constituency of the 42
Solapur Parlmantary Constituency there are
18,50,002 of registered voters Of which
10,81,386 polled their votes. The copy of
the polled votes given by Returning Officer
is enclosed as EXHIBIT "A". In normal
circumstances the number of polled votes
should tally with the counted votes.
Petitioner's candidates fared 1,70,007
votes, whereas the Respondent sponsored
by BJP fared 5,24,985 votes. However the
counted are votes 10,81,254. A copy of the
counted votes 23/05/2019 as provided by
Returning Officer is enclosed as EXHIBIT
"B". The petitioner says that the counted
voted does not match and 132 additional
votes, this is serious discrepancy in the
grand total. There are 132 votes which are
more than the votes polled.
6. That the certificate u/r 66 in form 22 came
to be issued illegally in favour of the
Respondent without complying with the
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mandatory requirements under the law which is
absolutely illegal and is void".
44. In a well-known judgment in the case of Samant N.
Balkrishna and another Vs. George Fernandez and others, 2 the
Hon'ble Supreme Court has enunciated the scope of Section 83 of
the Act on this aspect. Every fact which shall have to be proved to
formulate a complete cause of action is a material fact. In essence,
material facts are the entire bundle of facts which would constitute
a cause of action and which facts would have to be established by
the petitioner to be entitled to the relief claimed. The difference
between material facts and material particulars is explained by the
Hon'ble Supreme Court in the aforesaid judgment. The relevant
paragraph is extracted below;
"29. Having dealt with the substantive law
on the subject of election petitions we may
now turn to the procedural provisions in the
Representation of People Act. Here we have
to consider sections 81, 83 and 84 of the Act.
The first provides the procedure for the
presentation of election petitions. The
proviso to sub-section alone is material here.
It provides that an election petition may be
presented on one or more of the grounds
specified in sub-section (1) of section 100 and
section 101. That as we have shown above
2 (1963) 3 SCC 238
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creates the substantive right. Section 83 then
provides that the election-petition must
contain a concise statement of the material
facts on which the petitioner relies and
further that he must also set forth full
particulars of any corrupt practice that the
petitioner alleges including as full a statement
as possible of the names of the parties alleged
to have committed such corrupt practice and
the date and place of the commission of each
such practice. The section is mandatory and
requires first a concise statement of material
facts and then requires the fullest possible
particulars. What is the difference between
material facts and particulars? The word
'material' shows that the facts necessary to
formulate a complete cause of action must be
stated. Omission of a single material fact
leads to an incomplete cause of action and
the statement of claim becomes bad. The
function of particulars is to present as full a
picture of the cause of action with such
further information in detail as to make the
opposite party understand the case he will
have to meet. There may be some
overlapping between material facts and
particulars but the two are quite distinct.
Thus material facts will mention that a
statement of fact (which must be set out) was
made and it must be alleged that it refers to
the character and conduct of the candidate
that it is false or which the returned
candidate believes to be false or does not
believe to be true and that it is calculated to
prejudice the chances of the petitioner. In the
particulars the name of the person making
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the statement, with the date, time and place
will be mentioned. The material facts thus
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.
In stating the material facts it will not do
merely to quote the words of the section
because then the efficiency of the words
'material facts' will be lost. The fact which
constitutes the corrupt practice must be
stated and the fact must be co-related to one
of the heads of corrupt practice. Just as a
plaint without disclosing a proper cause of
action cannot be said to be a good plaint, so
also 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 making of a false statement. That
statement must appear and the particulars
must be full as to the person making the
statement and the necessary information.
Formerly the petition used to be in two parts.
The material facts had to be included in the
petition and the particulars in a schedule. It is
inconceivable that a petition could be filed
without the material facts and the schedule by
merely citing the corrupt practice from the
statute. Indeed the penalty of dismissal
summarily was enjoined for petitions which
did not comply with the requirement. Today
the particulars need not be separately
included in a schedule but the distinction
remains. The entire and complete cause of
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action must be in the petition in the shape of
material facts, the particulars being the
further information to complete the picture.
This distinction is brought out by the
provisions of section 86 although the penalty
of dismissal is taken away. Sub-section (5) of
that section provides:
"(5) The High Court may, upon such
terms as to costs and otherwise as it may
deem fit, allow the particulars of any
corrupt practice alleged in the petition
to be amended or amplified in such
manner as may in its opinion be
necessary for ensuring a fair and
effective trial of the petition, but shall
not allow any amendment of the
petition which will have the effect of
introducing particulars of a corrupt
practice not previously alleged in the
petition."
The power of amendment is given in respect of
particulars but there is a prohibition against an
amendment "which will have the effect of
introducing particulars of a corrupt practice not
previously alleged in the petition". One alleges
the corrupt practice in the material facts and
they must show a complete cause of action. If a
petitioner has omitted to allege a corrupt
practice, he cannot be permitted to give
particulars of the corrupt practice. The
argument that the latter part of the fifth sub-
section is directory only cannot stand in view of
the contrast in the language of the two parts.
The first part is enabling and the second part
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creates a positive bar. Therefore, if a corrupt
practice is not alleged, the particulars cannot be
supplied. There is, however, a difference of
approach between the several corrupt practices.
If for example the charge is bribery of voters
and the particulars give a few instances, other
instances can be added; if the charge is use of
vehicles for free carriage of voters, the
particulars of the cars employed may be
amplified. But if the charge is that an agent did
something, it cannot be amplified by giving
particulars of acts on the part of the candidate
or vice versa. In the scheme of election law
there are separate corrupt practices which
cannot be said to grow out of the material facts
related to another person. Publication of false
statements by an agent is one cause of action,
publication of false statements, by the candidate
is quite a different cause of action. Such a cause
of action must be alleged in the material facts
before particulars may be given. One cannot
under the cover of particulars of one corrupt
practice give particulars of a new corrupt
practice. They constitute different causes of
action".
The Election Petition is dehors material facts and full particulars of
the alleged corrupt practices.
45. Whenever there are allegations of corrupt practice in the
petition, it is mandatory to accompany the petition with an affidavit
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prescribed in a particular form indicating the allegations of such
corrupt practice and particulars thereof. Rule 94A of the conduct of
Election Rules provides that the affidavit referred to in the proviso
of sub-section 1 of Section 83 shall be sworn before the Magistrate
First Class or a Notary or Commissioner and shall be in form
No.25. There is no such affidavit sworn by the respondent, much
less, in form No.25 as mandated in proviso to section 83, sub
section (1) of the Act.
46. Mr. Ambedkar, in order to buttress his contention has pressed
into service a few decisions, however, he emphasized upon a
decision of the Supreme Court in the case of Kanimozhi
Karunanidhi Vs. A. Santhana Kumar and others 3. There can be no
argument that a right to elect, though fundamental it is to
democracy, is neither a fundamental right nor a common law right;
it is purely a statutory right. Similarly, right to be elected and the
right to dispute an election are also statutory rights. Since they are
statutory creations, they are subject to statutory limitations. An
Election Petition is not an action at common law, nor in equity. It is
a special jurisdiction to be exercised in accordance with the statute
3 Special Leave Petition (c) No.28241 2019
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creating it. The concept familiar to common law and equity must
remain stranger to election law unless statutorily embodied. It is
equally true that the Representation of the People Act is a complete
and self-contained Code within which must be found any rights
claimed in relation to an election dispute.
47. Mr. Ambedkar would invite my attention to paragraphs 23 to
27 of the aforesaid judgment to buttress his point as regards
material facts on which the Election Petition is related;
"23. The law so far developed and settled by this
Court with regard to the non-compliance of the
requirement of Section 83(1)(a) of the EP Act,
namely - "an Election petition must contain a
concise statement of material facts on which the
petitioner relies", is that such noncompliance of
Section 83(1)(a) read with Order VII, Rule 11,
CPC, may entail dismissal of the Election Petition
right at the threshold. "Material facts" are facts
which if established would give the petitioner the
relief asked for. The test required to be answered is
whether the court could have given a direct verdict
in favour of the election petitioner in case the
returned candidate had not appeared to oppose the
Election petition on the basis of the facts pleaded in
the petition. They must be such facts as would
afford a basis for the allegations made in the
petition and would constitute the cause of action as
understood in the Code of Civil Procedure 1908.
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Material facts would include positive statement of
facts as also positive statement of a negative fact.
24. A Three-Judge Bench in Hari Shanker Jain vs. Sonia
Gandhi (supra) had an occasion to deal with Section 83(1)(a)
of the RP Act and the Court dismissed the Election petition
holding that the bald and vague averments made in the
election petitions do not satisfy the requirements of pleading
"material facts" within the meaning of Section 83(1)(a) of the
RP Act read with the requirements of Order VII Rule 11
CPC. It was observed in paras 23 and 24 as under: -
"23. Section 83(1)(a) of RPA, 1951 mandates that
an election petition shall contain a concise
statement of the material facts on which the
petitioner relies. By a series of decisions of this
Court, it is well settled that the material facts
required to be stated are those facts which can be
considered as materials supporting the allegations
made. In other words, they must be such facts as
would afford a basis for the allegations made in
the petition and would constitute the cause of
action as understood in the Code of Civil
Procedure, 1908. The expression "cause of
action" has been compendiously defined to mean
every fact which it would be necessary for the
plaintiff to prove, if traversed, in order to
support his right to the judgment of court.
Omission of a single material fact leads to an
incomplete cause of action and the statement of
claim becomes bad. The function of the party is
to present as full a picture of the cause of action
with such further information in detail as to
make the opposite party understand the case he
will have to meet. (See Samant N. Balkrishna v.
George Fernandez [(1969) 3 SCC 238 : (1969) 3
SCR 603: (AIR 1969 SC 1201)], Jitendra
Bahadur Singh v. Krishna Behari [(1969) 2 SCC
433: (AIR 1970 SC 276)]. Merely quoting the
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words of the section like chanting of a mantra
does not amount to stating material facts.
Material facts would include positive statement
of facts as also positive averment of a negative
fact, if necessary. In V.S. Achuthanandan v. P.J.
Francis [(1999) 3 SCC 737: (AIR 1999 SC
2044)] this Court has held, on a conspectus of a
series of decisions of this Court, that material
facts are such preliminary facts which must be
proved at the trial by a party to establish
existence of a cause of action. Failure to plead
"material facts" is fatal to the election petition
and no amendment of the pleadings is
permissible to introduce such material facts after
the time-limit prescribed for filing the election
petition.
24. It is the duty of the court to examine the
petition irrespective of any written statement or
denial and reject the petition if it does not
disclose a cause of action. To enable a court to
reject a plaint on the ground that it does not
disclose a cause of action, it should look at the
plaint and nothing else. Courts have always
frowned upon vague pleadings which leave a
wide scope to adduce any evidence. No amount
of evidence can cure basic defect in the
pleadings."
25. In case of Mahadeorao Sukaji Shivankar vs.
Ramaratan Bapu & Ors. (2004 (7) SCC, 181:
AIROnline 2004 SC, 585) a Three-Judge Bench of this
Court again had an occasion to deal with the issues as
to what would constitute "material facts" and what
would be the consequences of not stating the "material
facts" in the Election petition, as contemplated in
Section 83(1)(a) of the RP Act, and the Court observed
as under:
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"6. Now, it is no doubt true that all material facts
have to be set out in an election petition. If
material facts are not stated in a plaint or a
petition, the same is liable to be dismissed on
that ground alone as the case would be covered
by clause (a) of Rule 11 of Order 7 of the Code.
The question, however, is as to whether the
petitioner had set out material facts in the
election petition. The expression "material facts"
has neither been defined in the Act nor in the
Code. It may be stated that the material facts are
those facts upon which a party relies for his
claim or defence. In other words, material facts
are facts upon which the plaintiff's cause of
action or the defendant's defence depends. What
particulars could be said to be material facts
would depend upon the facts of each case and
no rule of universal application can be laid
down. It is, however, absolutely essential that all
basic and primary facts which must be proved at
the trial by the party to establish existence of
cause of action or defence are material facts and
must be stated in the pleading of the party.
7. But, it is equally well settled that there is
distinction between "material facts" and
"particulars". Material facts are primary or basic
facts which must be pleaded by the petitioner in
support of the case set up by him either to prove
his cause of action or defence. Particulars, on the
other hand, are details in support of material
facts pleaded by the party. They amplify, refine
and embellish material facts by giving finishing
touch to the basic contours of a picture already
drawn so as to make it full, more clear and more
informative. Particulars ensure conduct of fair
trial and would not take the opposite party by
surprise."
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26. In Anil Vasudev Salgaonkar vs. Naresh Kushali
Shigaonkar, 2009 (9) SCC, 310: (2009 AIR SCW,
6812) this Court has discussed number of earlier
decisions on the issue as to when the Election petition
could be dismissed summarily if it does not furnish the
cause of action in exercise of powers under the Code
of Civil Procedure read with Section 83 of the R.P. Act.
"50. The position is well settled that an election
petition can be summarily dismissed if it does
not furnish the cause of action in exercise of the
power under the Code of Civil Procedure.
Appropriate orders in exercise of powers under
the Code can be passed if the mandatory
requirements enjoined by Section 83 of the Act
to incorporate the material facts in the election
petition are not complied with.
51. This Court in Samant N. Balkrishna case
[(1969) 3 SCC 238 :(AIR 1969 SC 1201)] has
expressed itself in no uncertain terms that the
omission of a single material fact would lead to
an incomplete cause of action and that an
election petition without the material facts
relating to a corrupt practice is not an election
petition at all. In Udhav Singh v. Madhav Rao
Scindia [(1977) 1 SCC 511: (AIR 1976 SC
744 )] the law has been enunciated that all the
primary facts which must be proved by a party
to establish a cause of action or his defence are
material facts. In the context of a charge of
corrupt practice it would mean that the basic
facts which constitute the ingredients of the
particular corrupt practice alleged by the
petitioner must be specified in order to succeed
on the charge. Whether in an election petition a
particular fact is material or not and as such
required to be pleaded is dependent on the
nature of the charge levelled and the
circumstances of the case. All the facts which are
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essential to clothe the petition with complete
cause of action must be pleaded and failure to
plead even a single material fact would amount
to disobedience of the mandate of Section 83(1)
(a). An election petition therefore can be and
must be dismissed if it suffers from any such
vice. The first ground of challenge must
therefore fail.
52. In V.Narayanaswamy v. C.P.
Thirunavukkarasu [(2000) 2 SCC 294: (AIR 2000
SC 694)] this Court reiterated the legal position
that an election petition is liable to be dismissed if
it lacks in material facts. In L.R. Shivaramagowda
v. T.M. Chandrashekar [(1999) 1 SCC 666 : (AIR
1999 SC 252)] this Court again considered the
importance of pleadings in an election petition
alleging corrupt practice falling within the scope
of Section 123 of the Act and observed as under:
(SCC p. 677, para 11)
"11. This Court has repeatedly stressed
the importance of pleadings in an election
petition and pointed out the difference
between 'material facts' and 'material
particulars'. While the failure to plead
material facts is fatal to the election
petition and no amendment of the
pleading could be allowed to introduce
such material facts after the time-limit
prescribed for filing the election petition,
the absence of material particulars can be
cured at a later stage by an appropriate
amendment".
53. In Udhav Singh case [(1977) 1 SCC
511 : AIR 1976 SC 744)] this Court
observed as under: (SCC pp. 522-23,
para 41)
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"41. Like the Code of Civil Procedure,
this section also envisages a distinction
between 'material facts' and 'material
particulars'. Clause (a) of sub-section (1)
corresponds to Order 6 Rule 2, while
clause (b) is analogous to Order 6 Rules 4
and 6 of the Code. The distinction
between 'material facts' and 'material
particulars' is important because different
consequences may flow from a deficiency
of such facts or particulars in the
pleading. Failure to plead even a single
material fact leads to an incomplete cause
of action and incomplete allegations of
such a charge are liable to be struck off
under Order 6 Rule 16, Code of Civil
Procedure. If the petition is based solely
on those allegations which suffer from
lack of material facts, the petition is liable
to be summarily rejected for want of a
cause of action. In the case of a petition
suffering from a deficiency of material
particulars, the court has a discretion to
allow the petitioner to supply the
required particulars even after the expiry
of limitation."
54. In H.D. Revanna case [(1999) 2 SCC 217 : AIR
1999 SC 768)] the appeal was filed by the candidate
who had succeeded in the election and whose
application for dismissal of the election petition in
limine was rejected by the High Court. This Court
noticed that it has been laid down by this Court that
non-compliance with the provisions of Section 83
may lead to dismissal of the petition if the matter
falls within the scope of Order 6 Rule 16 and Order
7 Rule 11 of the Code of Civil Procedure. In
Harmohinder Singh Pradhan v. Ranjeet Singh
Talwandi [(2005) 5 SCC 46 : (AIR 2005 SC 2379)]
this Court observed thus: (SCC p. 51, para 14)
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"14. Necessary averment of facts
constituting an appeal on the ground of
'his religion' to vote or to refrain from
voting would be material facts within the
meaning of clause (a) of sub-section (1) of
Section 83 of the Act. If such material
facts are missing, they cannot be supplied
later on, after the expiry of period of
limitation for filing the election petition
and the plea being deficient, can be
directed to be struck down under Order 6
Rule 16 of the Code of Civil Procedure,
1908 and if such plea be the sole ground
of filing an election petition, the petition
itself can be rejected as not disclosing a
cause of action under clause (a) of Rule
11, Order 7 of the Code."
55. In Harkirat Singh v. Amrinder Singh [(2005) 13 SCC
511 : (AIR 2006 SC 713)] this Court again reiterated
the distinction between "material facts" and "material
particulars" and observed as under: (SCC p. 527, paras
51-52)
"51. A distinction between 'material facts'
and 'particulars', however, must not be
overlooked. 'Material facts' are primary
or basic facts which must be pleaded by
the plaintiff or by the defendant in
support of the case set up by him either
to prove his cause of action or defence.
'Particulars', on the other hand, are
details in support of material facts
pleaded by the party. They amplify, refine
and embellish material facts by giving
distinctive touch to the basic contours of
a picture already drawn so as to make it
full, more clear and more informative.
'Particulars' thus ensure conduct of fair
trial and would not take the opposite
party by surprise.
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52. All 'material facts' must be pleaded by
the party in support of the case set up by
him. Since the object and purpose is to
enable the opposite party to know the
case he has to meet with, in the absence
of pleading, a party cannot be allowed to
lead evidence. Failure to state even a
single material fact, hence, will entail
dismissal of the suit or petition.
Particulars, on the other hand, are the
details of the case which is in the nature
of evidence a party would be leading at
the time of trial."
56. In Sudarsha Avasthi v. Shiv Pal Singh [(2008) 7
SCC 604 : (AIR 2008 SC 2724)] this Court observed
as under: (SCC p. 612, para 20)
"20. The election petition is a serious matter and
it cannot be treated lightly or in a fanciful
manner nor is it given to a person who uses this
as a handle for vexatious purpose."
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
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formulate a complete cause of action should be
termed as "material facts". All basic and primary facts
which must be proved by a party to establish the
existence of cause of action or defence are material
facts. "Material facts" in other words mean the entire
bundle of facts which would constitute a complete
cause of action. This Court in Harkirat Singh case
[(2005) 13 SCC 511 : (AIR 2006 SC 713)] tried to
give various meanings of "material facts". The
relevant para 48 of the said judgment is reproduced
as under: (SCC pp. 526-27)
"48. The expression 'material facts' has
neither been defined in the Act nor in the
Code. According to the dictionary meaning,
'material' means 'fundamental', 'vital', 'basic',
'cardinal', 'central', 'crucial', 'decisive',
'essential', 'pivotal', 'indispensable',
'elementary' or 'primary'. [Burton's Legal
Thesaurus (3rd Edn.), p. 349.] The phrase
'material facts', therefore, may be said to be
those facts upon which a party relies for its
claim or defence. In other words, 'material
facts' are facts upon which the plaintiff's
cause of action or the defendant's defence
depends. What particulars could be said to
be 'material facts' would depend upon the
facts of each case and no rule of universal
application can be laid down. It is,
however, absolutely essential that all basic
and primary facts which must be proved at
the trial by the party to establish the
existence of a cause of action or defence are
material facts and must be stated in the
pleading by the party."
27. In Ram Sukh vs. Dinesh Aggarwal (AIR 2010 SC
1227) (supra), this Court again while examining the
maintainability of Election petition filed under Section
100(1)(d)(iv) of the RP Act, elaborately considered the
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earlier decisions and observed that it was necessary for
the election petitioner to aver specifically in what
manner the result of the election in so far as it
concerned the returned candidate was materially
affected due to omission on the part of the Returning
Officer. The Court in the said case having found that
such averments being missing in the Election petition,
upheld the judgment of the High Court/Election
Tribunal rejecting the Election petition at the threshold.
The Court observed in paras 14 to 21 as under: -
"14. The requirement in an election petition
as to the statement of material facts and the
consequences of lack of such disclosure with
reference to Sections 81, 83 and 86 of the Act
came up for consideration before a three-
Judge Bench of this Court in Samant N.
Balkrishna v. George Fernandez [(1969) 3
SCC 238 : AIR 1969 SC 1201)]. Speaking for
the three-Judge Bench, M. Hidayatullah, C.J.,
inter alia, laid down that:
i) Section 83 of the Act is mandatory and
requires first a concise statement of material
facts and then the fullest possible particulars;
(ii) omission of even a single material fact
leads to an incomplete cause of action and
statement of claim becomes bad;
(iii) the function of particulars is to present in
full a picture of the cause of action and to
make the opposite party understand the case
he will have to meet;
(iv) material facts and particulars are distinct
matters - material facts will mention
statements of fact and particulars will set out
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the names of persons with date, time and
place; and
(v) in stating the material facts it will not do
merely to quote the words of the section
because then the efficacy of the material facts
will be lost.
15. At this juncture, in order to appreciate the
real object and purport of the phrase
"material facts", particularly with reference to
election law, it would be appropriate to notice
the distinction between the phrases "material
facts" as appearing in clause (a) and
"particulars" as appearing in clause (b) of sub-
section (1) of Section 83. As stated above,
"material facts" are primary or basic facts
which have to be pleaded by the petitioner to
prove his cause of action and by the
defendant to prove his defence. "Particulars",
on the other hand, are details in support of
the material facts, pleaded by the parties.
They amplify, refine and embellish material
facts by giving distinctive touch to the basic
contours of a picture already drawn so as to
make it full, more clear and more
informative. Unlike "material facts" which
provide the basic foundation on which the
entire edifice of the election petition is built,
"particulars" are to be stated to ensure that the
opposite party is not taken by surprise.
16. The distinction between "material facts"
and "particulars" and their requirement in an
election petition was succinctly brought out
by this Court in Virender Nath Gautam v.
Satpal Singh [(2007) 3 SCC 617 : AIR 2007
SC 581)] wherein C.K. Thakker, J., stated
thus: (SCC pp. 631-32, para 50)
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"50. There is distinction between facta
probanda (the facts required to be proved i.e.
material facts) and facta probantia (the facts
by means of which they are proved i.e.
particulars or evidence). It is settled law that
pleadings must contain only facta probanda
and not facta probantia. The material facts on
which the party relies for his claim are called
facta probanda and they must be stated in the
pleadings. But the facts or facts by means of
which facta probanda (material facts) are
proved and which are in the nature of facta
probantia (particulars or evidence) need not
be set out in the pleadings. They are not facts
in issue, but only relevant facts required to be
proved at the trial in order to establish the
fact in issue.
17. Now, before examining the rival
submissions in the light of the aforestated
legal position, it would be expedient to deal
with another submission of the learned
counsel for the appellant that the High Court
should not have exercised its power either
under Order 6 Rule 16 or Order 7 Rule 11 of
the Code to reject the election petition at the
threshold. The argument is twofold viz.:
(i) that even if the election petition was liable
to be dismissed ultimately, it should have
been dismissed only after affording an
opportunity to the election petitioner to
adduce evidence in support of his allegation
in the petition, and
(ii) since Section 83 does not find a place in
Section 86 of the Act, rejection of the
petition at the threshold would amount to
reading into sub-section (1) of Section 86 an
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additional ground. In our opinion, both the
contentions are misconceived and untenable.
18. Undoubtedly, by virtue of Section 87 of
the Act, the provisions of the Code apply to
the trial of an election petition and,
therefore, in the absence of anything to the
contrary in the Act, the court trying an
election petition can act in exercise of its
power under the Code, including Order 6
Rule 16 and Order 7 Rule 11 of the Code.
The object of both the provisions is to ensure
that meaningless litigation, which is
otherwise bound to prove abortive, should
not be permitted to occupy the judicial time
of the courts. If that is so in matters
pertaining to ordinary civil litigation, it must
apply with greater vigour in election matters
where the pendency of an election petition is
likely to inhibit the elected representative of
the people in the discharge of his public
duties for which the electorate have reposed
confidence in him. The submission,
therefore, must fail.
19. Coming to the second limb of the
argument viz. absence of Section 83 in
Section 86 of the Act, which specifically
provides for dismissal of an election petition
which does not comply with certain
provisions of the Act, in our view, the issue is
no longer res integra. A similar plea was
negatived by a three-Judge Bench of this
Court in Hardwari Lal v. Kanwal Singh
[(1972) 1 SCC 214 : (AIR 1972 SC 515)],
wherein speaking for the Bench, A.N. Ray, J.
(as His Lordship then was) said: (SCC p. 221,
para 23)
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"23. Counsel on behalf of the respondent
submitted that an election petition could not
be dismissed by reason of want of material
facts because Section 86 of the Act conferred
power on the High Court to dismiss the
election petition which did not comply with
the provisions of Section 81, or Section 82 or
Section 117 of the Act. It was emphasised
that Section 83 did not find place in Section
86. Under Section 87 of the Act every
election petition shall be tried by the High
Court as nearly as may be in accordance with
the procedure applicable under the Code of
Civil Procedure, 1908, to the trial of suits. A
suit which does not furnish cause of action
can be dismissed."
20. The issue was again dealt with by this
Court in Azhar Hussain v. Rajiv Gandhi
[1986 Supp SCC 315 : (AIR 1986 SC
1253)] . Referring to earlier pronouncements
of this Court in Samant N. Balkrishna
[(1969) 3 SCC 238] and Udhav Singh v.
Madhav Rao Scindia [(1977) 1 SCC 511]
wherein it was observed that the omission of
a single material fact would lead to
incomplete cause of action and that an
election petition without the material facts is
not an election petition at all, the Bench in
Azhar Hussain case [1986 Supp SCC 315 :
(AIR 1986 SC 1253)] held that all the facts
which are essential to clothe the petition with
complete cause of action must be pleaded and
omission of even a single material fact would
amount to disobedience of the mandate of
Section 83(1)(a) of the Act and an election
petition can be and must be dismissed if it
suffers from any such vice.
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21. We may now advert to the facts at hand
to examine whether the election petition
suffered from the vice of nondisclosure of
material facts as stipulated in Section 83(1)
(a) of the Act. As already stated the case of
the election petitioner is confined to the
alleged violation of Section 100(1)(d)(iv). For
the sake of ready reference, the said
provision is extracted 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-
***
(d) that the result of the election, insofar as it
concerns a returned candidate, has been
materially affected-
***
(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."
It is plain that in order 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 or
orders made under the Act, the result of the
election, insofar as it concerned the returned
candidate, was materially affected."
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48. It is surprising as to how the ratio laid down by the Supreme
Court in Kanimozhi Karunanidhi (supra) would be of any assistance
to the learned Counsel. All the facts which are essential to clothe
the petition with complete cause of action must be pleaded and
failure to plead even a single material fact would amount to
disobedience of mandate of Section 83 (1) (a). The Election
Petition, therefore, can be dismissed as it suffers from such vice. The
Supreme Court has drawn support from various previous decisions
in order to define "material facts" and "cause of action" as well as
distinction between "material facts" and "particulars".
49. In the case of Harkirat Singh Vs. Amrinder Singh4 , the
Supreme Court against reiterated the distinction between "material
facts" and "material particulars". It would be advantageous to
extract paragraph 58 of the judgment which reads thus;
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
4 (2005) 13 SCC 511
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words mean the entire bundle of facts which
would constitute a complete cause of action. This
Court in Harkirat Singh case [(2005) 13 SCC
511 : (AIR 2006 SC 713)] tried to give various
meanings of "material facts". The relevant para 48
of the said judgment is reproduced as under: (SCC
pp. 526-27)
"48. The expression 'material facts' has
neither been defined in the Act nor in the
Code. According to the dictionary meaning,
'material' means 'fundamental', 'vital', 'basic',
'cardinal', 'central', 'crucial', 'decisive',
'essential', 'pivotal', 'indispensable',
'elementary' or 'primary'. [Burton's Legal
Thesaurus (3rd Edn.), p. 349.] The phrase
'material facts', therefore, may be said to be
those facts upon which a party relies for its
claim or defence. In other words, 'material
facts' are facts upon which the plaintiff's
cause of action or the defendant's defence
depends. What particulars could be said to be
'material facts' would depend upon the facts
of each case and no rule of universal
application can be laid down. It is, however,
absolutely essential that all basic and primary
facts which must be proved at the trial by the
party to establish the existence of a cause of
action or defence are material facts and must
be stated in the pleading by the party."
50. On one hand, learned Counsel for the respondent submits
that in view of the averments in paragraph 3 of the Election
Petition, Election Commission of India and the Returning Officer
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have indulged in serious corrupt practice for the benefit of the
Returned candidate, however, while arguing the matter, he submits
that there was a breach of duty on the part of the Election
Commission of India and the Returning Officer which gave rise to a
cause of action to file the Election Petition which has nothing to do
with the alleged corrupt practices. This is incomprehensive. No
sane man would accept such argument.
51. Mr. Ambedkar would emphasize that breach of the duty on
the part of the Election Commission of India and the Returning
Officer in not referring the matter to the Election Commission itself
gave rise to a cause of action. According to him, material fact in this
case is Electronic Voting Machines (EVM). I have already discussed
the aspect herein before and, therefore, it is needless to reiterate
the same. Merely because the matter has proceeded further by
recording evidence of Returning Officer who had already admitted
certain material facts in his affidavit, does not ipso facto mean that
the application under Order-VII, Rule-11 is filed with an ulterior
motive at a belated stage only to stall the proceedings further. As
already stated, such an application can be made at any stage of the
trial.
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52. Learned Counsel for the respondent has invited my attention
to Section 97 of the Act and Rule 9 of the Rules framed by this
Court in regard to Election Petition under the Act. He would argue
that the provisions of Order-VII, Rule-11 of the C.P.C would not
apply to the Election petitions in view of Rule-9 of the High Court
Original Side Rules. According to him, this Court has already
presumed that there is due compliance of Sections 83 and 86 of the
Act. Provisions of C.P.C would attract only in case there is some
grey area. Since the application under Order-VII, Rule-11 has not
been filed within 14 days, the same is not tenable. The arguments
do not stand to reason in view of the decision in the case of
Kanimozi (supra) pressed by the learned Counsel for the respondent
himself.
53. Mr. Ganbavale, on the other hand, contends that in view
of an order passed by this Court on 12 th July, 2023, the
respondent was allowed to file an affidavit of service qua the
returned candidate. As per the track consignment, date of
service was 5th October, 2019. He submits that there was non
compliance of Section 81 of the R.P. Act. Mr. Ganbavale
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would further contend that even the subsequent verification in
green letters is not in consonance with Section 81 of the Act.
54. The present Election Petition appears to be in the nature of a
Public Interest Litigation rather than an Election Petition. The
respondent has predominantly challenged the functioning of the
Electronic Voting Machine (EVM) and alleged concern about it's
efficacy and reliability which is, indeed beyond the scope of an
election dispute. This Court cannot, in an Election Petition, venture
upon functioning and usage of Electronic Voting Machines (EVM)
in the electoral process.
55. Mr. Ganbavale has invited my attention to paragraph 32 of
the Election Petition which is essentially a prayer clause. Prayer
clauses read thus;
"32. (a) The hon'ble court may kindly be pleased
to direct the Election Commission of India &
Returning Officer to explain the difference in
polled votes and counted votes.
(b) The returning officer be directed to produce
the numerical number embossed of each EVM used
on the date of polling.
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(c) The returning officer be directed to produce
the numerical number on the EVM produce on the
date of counting.
(d) This Court declare that returning officer has
not followed the direction laid in 15:30.
(e) It be declared that once the difference of votes
is established between polled votes and counted
votes, the powers granted to declare the result is
withdrawn.
(f) It be declared once the difference of vote is
established between polled votes and counted votes
it is mandatory on returning officer to refer the
matter to the election commission of India.
(g) It be declare that till the direction is received from
Election Commission of India to returning officer in
case of difference of vote, the returning officer is not
empowered to declare the election result.
(h) It be declare that returning officer has to act
according to the advice/guidelines, once the matter is
referred to Election Commission of India.
(i) It be declare that inspite of difference of votes the
Election Commission of India failed to act as per sub
clause 15.30.
(j) It be declare that non-reference of Election
Commission of India to returning officer is illegal.
(k) It be declare that the declaration by returning
officer of election of respondent is illegal and void and
without powers.
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(l) It be declare that the declaration by returning
officer of election of respondent is illegal and void and
without powers.
(m) In absence of any tangible declare election of the
respondent to be null and void, for non compliances
with the laws, and therefore also declare that the
certificate issued to the respondent in form 22 u/r 66
to be null and void.
(n) During the pendency and final hearing of this
petition, direct suspension/withdrawal of the
certificate issued to respondent under rules 66 in form
22 of the rules.
(o) As to cost".
56. A bare look at clauses (a) to (f) would reveal that they are
beyond the scope of Section 100 of the Act. As already stated
hereinabove, Election Petition is sans averments of any corrupt
practices alleged to have been committed by the returned candidate
or his election agent or by any other person with the consent of the
returned candidate or his election agent as provided in clause (b) of
Section 100. No doubt, a few defects in the verification of the
Election Petition are not fatal to it's maintainability and the Election
Petition cannot be thrown out solely on that ground as has been
held by the Supreme Court in case of Saritha S. Nair Vs. Hibi Eden,
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wherein the Supreme Court has drawn support from a decision of
three Member Bench of that Court in F.A. Sapa Vs. Singora.6 This is
on the basis that section 83 is not one of the three provisions
mentioned in Section 86 (1) and, therefore, it cannot be ordinarily
construed as mandatory unless it is shown as an integral part of the
petition under Section 81 of the said Act. The argument of Mr.
Ganbavale to that effect cannot be taken as vital and the petition
cannot be dismissed on that premise. This Court on identical facts
in case of Dr. Rameshkumar Bapuraoji Gajbe Vs. Election
Commission of India, New Delhi and others 7 has expounded scope
of Sections 81 and 83 in respect of material facts, cause of action
and also as regards essential requirements for declaring an election
to be void as contemplated in Section 100 of the said Act. In case
of Dr. Rameshkumar (supra), this Court has also drawn support
from the decision in case of Samant N. Balkrishna (supra). It is trite
law that an Election Petition which is bereft of material fact/s would
entail dismissal at the threshold on the premise that there are no
material facts averred in the Election Petition which would lead to
incomplete cause of action.
5 Special Leave Petition (Civil) No.10678 of 2020
6 (1991) 3 SCC 375
7 Election Petition No.6 of 2019
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57. Mr. Ambedkar has emphasized on the guidelines/instructions
15:30 of the handbook for the Returning Officer issued by the
Election Commission of India. Since this Court is considering an
application for rejection of the Election Petition in view of Order-
VII, Rule - 11 (a) and (d) of the Code of Criminal Procedure, at this
stage the said issue need not be gone into as the Petition itself
suffers from basic legal requirements provided in the Act.
58. In the case of Dr. Aruna Mohan Mali Vs. Election
Commission of India and others8 facts are almost identical. This
Court had rejected the Election Petition under the provisions of
Order-VII, Rule - 11 (a) of the C.P.C in absence of complete cause
of action for declaring the election of respondent No.3 to be void
under Section 100 (1) (d) (iv) of the Act.
59. Mr. Ganbavale states that the Hon'ble Supreme Court is
seized of the issues concerning the functioning and efficacy of the
Electronic Voting Machines (EVMs). The matter consisting the
mode of conducting elections, including usage of EVMs' or ballet
papers is a prerogative of the Election Commission of India in view
8 2022 SCC Online Bom 6299
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of the relevant statutory provisions. The contentions in the Election
Petition would also reveal that there are no specific allegations in
respect of election process of 42nd Solapur (SC) Loksabha General
Election, 2019. Essentially, concerns raised by the respondent are in
respect of Electronic Voting Machines, usage, electoral system
without any particular allegations targeted at election process of
Solapur Constituency. It is apparent that there is no ground as
contemplated under Section 100 of the Act as to how the result of
the election as regards the returned candidate has been materially
affected.
60. In terms of Section 119 of the Act, returned candidate is
entitled to costs incurred by him, however, section gives discretion
to this Court to impose costs.
61. In the given set of facts and circumstances, I am exercising my
discretion not to award costs.
62. In the result, application is allowed.
63. Election Petition stands rejected under Order-VII, Rule-11 (a)
(d) of the C.P.C. Security deposit stands forfeited.
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64. In view of disposal of the Election Petition, pending
applications, if any, also stand disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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