Suraj Balram Mishra vs Election Commission Of India Thr. Its ...
2025 Latest Caselaw 3303 Bom

Bombay High Court

Suraj Balram Mishra vs Election Commission Of India Thr. Its ... on 19 March, 2025

2025:BHC-NAG:2792-DB




                      Judgment

                                                                  379 Election Petition3.24

                                                   1

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                 NAGPUR BENCH, NAGPUR

                                 ELECTION PETITION NO.3 OF 2024

                      Suraj Balram Mishra, age 30 years,
                      occupation - self employed, r/o - near
                      Mehandibag Power House, Dr.Ambedkar
                      Marg, Nagpur - 440017.             ..... Petitioner.

                                           :: V E R S U S ::

                      1. Election Commission of India,
                      through its Chief Election
                      Commissioner and other Companion
 Resp.Nos.1, 2, & 4   Election Commissioner, Nirvachan
 are deleted as per
the Hon'ble Court's
                      Sadan, Ashoka Road, New Delhi - 110001.
  order dt.27.11.24
                      2. The Chief Electoral Officer,
                      General Administration Department,
                      6th Floor Annex Building, Madam Cama
                      Marg, Hutatma Rajguru Chowk,
                      Mantralaya, Mumbai - 400032.

                      3. Chief Executive Officer and Officer of
                      Code of Conduct, Z.P.Office, Nagpur -
                      440001.

                      4. Returning Officer, District Officer
                      (Election), Civil Line, Nagpur - 440001.

                      5. Nitin Jairam Gadkari,
                      Upper Ground Floor Blu Puma Store


                                                                                   .....2/-
 Judgment

                                        379 Election Petition3.24

                           2

Enrico Heights Beside Radisson
Chatrapati Nagar, Nagpur (Maharashtra)
440015.                       ..... Respondents.
==============================
The Petitioner-in-Person.
Shri S.V.Manohar, Senior Counsel assisted by Shri Atharva
Manohar, Advocate for Respondent No.5.
==============================

CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 20/02/2025
PRONOUNCED ON : 19/03/2025

JUDGMENT

1. By the present election petition, the petitioner

has challenged the election of respondent No.5 - Nitin

Jairam Gadkari on the ground that the Bharatiya Janta

Party (BJP) and its workers have violated the Model

Code of Conduct. It is alleged that Software was

created and slips were distributed to voters having

photographs, name of respondent No.5 - Nitin Jairam

Gadkari and symbol of the BJP. It is further alleged that

machines were given to the representatives of all booths

of Nagpur. The main function of the machine was to .....3/-

Judgment

379 Election Petition3.24

print the voters' details having photos, name of

respondent No.5 - Nitin Jairam Gadkari and symbol of

the BJP. Thus, respondent No.5 - Nitin Jairam Gadkari

and the BJP committed violation of Code of Conduct.

The respondent No.5 - Nitin Jairam Gadkari by means

of corrupt practices violated the Model Code of

Conduct. Various complaints including the complaint of

the petitioner were lodged as to the said violation.

However, no cognizance was taken and hence the

petition.

2. By this petition, the petitioner has claimed

following reliefs.

I). Allow the petition and thereby direct the

respondents authorities to conduct fresh and fair

enquiry regarding complaint given by the

.....4/-

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379 Election Petition3.24

petitioner and other candidates and take proper

legal action;

II). To declare the election of respondent No.5 for

Nagpur Parliamentary Constituency (No.10) in

General Lok Sabha Election held in April 2024 is

illegal and further be pleased to set aside the

result of election in favour of respondent No.5,

declared by respondent No.4.

III). Direct the respondent authorities to conduct

fresh election in the Nagpur Constituency, if the

irregularities are proved during the enquiry.

IV). Grant any other relief as this court deems fit

and proper in the facts and circumstances of the

case.

3. In response to the notice, respondent No.5 - Nitin

Jairam Gadkari appeared and filed an application vide

.....5/-

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379 Election Petition3.24

Civil Application No.139/2025 under Order VII Rule 11

of the CPC with Section 86 of the Representation of the

People Act, 1951 (the RP Act) for rejection of election

petition and Civil Application No.140/2025 under

Order VI Rule 16 the CPC for striking out of pleadings.

The application under Order VII Rule 11 of the

CPC is filed on the ground that;

(1) The petition does not disclose any cause of

action. No cause of action discloses as petition

does not disclose violation of the Model Code of

Conduct. It does not disclose whether violation

is by the returning candidate or his election

agent or with their authorization are concerned;

(2) The material facts such as who distributed

the slips, at which place (specific place and time

not mentioned). In absence of specific cause of

.....6/-

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379 Election Petition3.24

action, election petition deserves to be

dismissed;

(3). The material fact that the election has been

materially affected has not been pleaded;

(4). Vague pleading as to the violation of Model

Code of Conduct by the BJP and its workers is

not sufficient;

(5). The allegations are against party in general

and not against returning candidate respondent

No.5 - Nitin Jairam Gadkari;

(6). Thus, the materials facts that the election

was materially affected itself is not pleaded; and

(7). Affidavit and verification appended to the

petition are wholly defective. In the affidavit,

general statement para no.1 to 6 are true to his

knowledge is mentioned. In fact, the petitioner

.....7/-

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379 Election Petition3.24

to clarify which portion of the petition is as per

his personal knowledge and which portion as

per his information.

4. Thus, it was contended that from reading of the

election petition, it can be clearly seen that absolutely

no cause of action is made out by the petitioner for

challenging the election of respondent No.5 - Nitin

Jairam Gadkari. The petitioner has indulged in making

false, frivolous, baseless, and irresponsible allegations

without any basis and does not constitute a single

material fact giving rise to cause of action taken as a

whole. The election petition does not disclose single

cause of action and the same deserves to be summarily

dismissed under Order VII Rule 11 of the CPC read with

86 of the RP Act.

.....8/-

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379 Election Petition3.24

5. The said application is strongly opposed by the

petitioner on the ground that the Model Code of

Conduct is violated by respondent No.5 - Nitin Jairam

Gadkari and election of respondent No.5 - Nitin Jairam

Gadkari deserves to be quashed and set aside on that

grounds itself. Filing of this application is only for the

purpose of delaying the petition.

6. Heard learned Senior Counsel Shri S.V.Manohar

for respondent No.5 - Nitin Jairam Gadkari. He invited

my attention towards various provisions of the RP Act

and submitted that omission to pleading even single

material fact leads to an incomplete cause of action and

must result dismissal of the election petition at the

threshold. There must be proper pleading that the

result of the petitioner is materially affected as regards

the returning candidate. He submitted that an election

petition which does not disclose any cause of action can

.....9/-

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379 Election Petition3.24

be dismissed summarily under Order VII Rule 11 of the

CPC at the threshold of proceeding or at subsequent

stage of the proceeding. If any election petition does

not disclose cause of action, it is to be dismissed under

Order VII Rule 11 of the CPC. He submitted that it is

well settled that the provisions of the of CPC do not

apply entirely to the trial of the election petition, but

the provisions of Order VII Rule 11 of the CPC apply to

an election petition and this court has jurisdiction to

reject plaint which does not disclose any cause of

action. It would be in the interests of the parties to the

petition and to the constituency and in the public

interests to dispose of the preliminary object and to

reject an election petition if it does not disclose any

cause of action. He further submitted that Section 123

of the RP Act deals with corrupt practices. What shall

be corrupt practices, the same has been enumerated in

.....10/-

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379 Election Petition3.24

Section 123 of the RP Act. In view of Section 83 of the

RP Act, the election petition shall contain a concise

statement of the material facts on which the petitioner

relies. The petitioner shall set forth full particulars of

any corrupt practices. Thus, it is the duty of the person

who files the election petition to disclose the material

facts on which he relies that he should set forth the full

particulars of corrupt practices that the petition alleges

including full statement as far as possible disclosing the

names of the parties alleged to have committed such

corrupt practices. Thus, he submitted that stating the

material facts in the election petition and full

particulars are necessary. As the petitioner has not

disclosed the material particulars along with material

facts, the petition deserves to be dismissed.

7. The another ground raised by learned Senior

Counsel is that there is no verification of pleadings as

.....11/-

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379 Election Petition3.24

per the requirements prescribed by Section 83 of the RP

Act which is mandatory in nature. Such verification as

prescribed is necessary to indicate the source of

knowledge. Merely stating that the facts stated in para

nos1. to 26 were true and correct is not sufficient. On

that ground also, the petition deserves to be dismissed.

8. In support of his contentions, learned Senior

Counsel placed reliance on following decisions:

1. Samar Singh vs. Kedar Nath alias K.N.Singh and ors, reported in 1987 (Supp) SCC 663;

2. Jyoti Basu and ors vs. Debi Ghosal and ors, reported in (1982)1 SCC 691;

3. Sudarsha Avasthi vs. Shiv Pal Singh, reported in (2008)7 SCC 604;

4. M.J.Jacob vs. A.Narayanan and ors, reported in (2009)14 SCC 318;

5. Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, reported in (2009)9 SCC 310;

.....12/-

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379 Election Petition3.24

6. Jitu Patnaik vs. Sanatan Mohakud and ors, reported in (2012)4 SCC 194;

7. Kanimozhi Karunanidhi vs. A.Santhana Kumar and ors, reported in 2023 SCC OnLine SC 573;

8. Dr.Rameshkumar Bapuraoji Gajbe vs. Election Commission of India, New Delhi and ors, reported in 2020(5) Mh.L.J. 328;

9. Manohar @ Sagar s/o Pundlik Dabrase vs. Election Commission of India, New Delhi and ors, reported in 2020(3) Mh.L.J.72;

10. Ram Sukh vs. Dinesh Aggarwal, reported in (2009)10 SCC 541;

11. Union of India and ors vs. A.K.Pandey, reported in (2009)10 SCC 552;

12. Bachan Singh vs. Prithvi Singh and ors, reported in (1975)1 SCC 368;

13. Shri Baburao Patel and ors vs. Dr.Zakir Husain and ors, reported in 1967 SCC OnLine SC 343;

14. Charan Lal Sahu vs. Giani Zail Singh and anr, reported in (1984)1 SCC 390.

9. The petitioner who is appearing in-person

submitted that various complaints filed by the various .....13/-

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379 Election Petition3.24

persons show the violation of Model Code of Conduct

by respondent No.5 - Nitin Jairam Gadkari.

Immediately, on the day of the election, he filed an

application to the Collector pointing out violation of the

Code of Conduct. He also sent a mail to the Election

Commission at Delhi. Similarly, another applicant

K.V.Suryawanshi also made his grievance as to the

violation of the Code of Conduct. The enquiry was

conducted and report was submitted which also

substantiates the allegations of the petitioner. The Code

shows that that an election agent may perform such

function in connection with the election as are

authorized by the RP Act and the Rules made

thereunder. While undertaking the election campaign,

the candidate should ensure that higher standard of

modality and purity is maintained. The commission of

any such practices may vitiates the election. Thus, for

.....14/-

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379 Election Petition3.24

above these grounds the application for rejection of

plaint deserves to be rejected.

10. It is law 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 creating it.

The concept familiar to common law and equity must

remain stranger to election law unless statutorily

embodied. Thus, the entire election process

commencing from the issuance of notification calling

upon a constituency to elect a member or members

right upto final resolution of the dispute, concerning

.....15/-

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379 Election Petition3.24

the election is regulated by the RP Act. Therefore, the

said RP Act has been held to be a complete and self

contained Code within which must be found in any

rights claimed in relation to an election dispute.

11. Before dealing with the issue raised by the

petitioner, an application filed by respondent No.5 -

Nitin Jairam Gadkari, it is necessary to deal with

various provisions and refer relevant provisions.

12. Part-VI of the RP Act deals with disputes

regarding election.

13. Section 79 of the RP Act deals with definition

part. Section 79(b) defines the definition of "candidate"

means a person who has been or claims to have been

duly nominated as a candidate at in any election.

14. Section 79(f) deals with the definition of

"returned candidate" which means a candidate whose

.....16/-

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379 Election Petition3.24

name has been published under Section 67 as duly

elected.

15. Section 80 deals with statutory ban on an

election being called in question.

16. Section 80-A vests the powers with the High

Court to decide the election petition.

17. Section 81 provides the presentation of an

election petition.

18. Section 82 speaks about parties to the petition

which reads as under:

"82. Parties to the petition.-- A petitioner shall join as respondents to his petition--

(a) where the petitioner, in addition to claiming 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

.....17/-

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379 Election Petition3.24

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."

19. Section 83 deals with content of petition which is

reproduced for the reference as under:

"83. Contents of petition.-- (1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

.....18/-

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379 Election Petition3.24

(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."

20. Thus, Section 83 prescribes the contents of the

petition.

21. Section 84 provides that in addition to claiming a

declaration that the election of returned candidate is

void, claim further declaration that he himself or any

other candidate be declared has duly elected.

.....19/-

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379 Election Petition3.24

22. Section 86 deals with the trial of election

petitions and Section 87 is as to the procedure before

the High Court.

23. Section 97 deals with recrimination when seat

claimed which states that when in an election petition a

declaration that any candidate other than the returned

candidate has been duly elected is claimed, the

returned candidate or any other party may give

evidence to prove that the election of such candidate

would have been void if he had been the returned

candidate and a petition had been presented calling in

question his election.

Proviso to Section 97(1) states that the returned

candidate or such other party, as aforesaid shall not be

entitled to give such evidence unless he has, within

fourteen days from the date of (commencement of the

.....20/-

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379 Election Petition3.24

trial), given notice to (the High Court) of his intention

to do so and has also given the security and the further

security referred to in sections 117 and 118

respectively.

Sub section (2) of Section 97 states that every

notice referred to in sub-section (1) shall be

accompanied by the statement and particulars required

by section 83 in the case of an election petition and

shall be signed and verified in like manner.

24. Section 123 of the RP Act in Part VII in Chapter I

is in relation to corrupt practices, which is reproduced

for the purpose of reference:

"123. Corrupt practices.-- The following shall be deemed to be corrupt practices for the purposes of this Act:--

(1) "Bribery", that is to say--

.....21/-

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379 Election Petition3.24

(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing--

(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to--

(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--

.....22/-

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379 Election Petition3.24

(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.

Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any

.....23/-

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379 Election Petition3.24

other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--

(i)threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii)induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

.....24/-

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379 Election Petition3.24

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

.....25/-

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379 Election Petition3.24

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

Explanation.--For the purposes of this clause, "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987.

.....26/-

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379 Election Petition3.24

(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.

(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub- section (1) of section 29 for the poll:

.....27/-

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379 Election Petition3.24

Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation.--In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.

.....28/-

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379 Election Petition3.24

(6) The incurring or authorizing of expenditure in contravention of section 77.

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:-

(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union;

(d) members of the police forces;

(e) excise officers;

.....29/-

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379 Election Petition3.24

(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and

(g) such other class of persons in the service of the Government as may be prescribed:

(h) clas of persons in the service of a local authority, university, government company or insitution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections]

Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to,

.....30/-

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379 Election Petition3.24

any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election].

[(8) Booth capturing by a candidate or his agent or other person.]

Explanation.--(1)In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent of that candidate.

.....31/-

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379 Election Petition3.24

(3)For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof--

(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and

(ii)where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date].

.....32/-

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379 Election Petition3.24

(4) For the purposes of clause (8), "booth capturing" shall have the same meaning as in section 135A.]"

25. The election of returning candidate respondent

No.5 - Nitin Jairam Gadkari is challenged on the ground

of violation of Model Code of Conduct, undue influence

on voters and relief is claimed to declare his election as

void and illegal. Respondent No.5 - Nitin Jairam

Gadkari by filing an application under Order VII Rule

11 of the CPC by raising the ground that verification

and affidavit appended to the petition are wholly

defective and, therefore, claimed dismissal of the

petition. It is submitted that in the affidavit and

verification of the petition, general statement that para

Nos.1 to 26 are true to his knowledge is mentioned. In

fact, the petitioner to clarify which portion of the

petition is as per his knowledge and which portion is as

.....33/-

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379 Election Petition3.24

per his information. Taking into consideration the said

submissions, the verification below the petition and the

affidavit and the separate affidavit filed by the

petitioner are perused. Perusal of the verification

shows that "the contents of para Nos.1 to 26 in the

submissions are drafted by my counsel as per my

instructions. The said are read over to me in vernacular

language in Marathi and I fully understood the same

and the same is true and correct as per my person

knowledge and belief, are mentioned. Similarly, in

separate affidavit under Section 81 of the RP Act in

Form No.25 under Rule 94-A of the Conduct of Election

Rules 1961 is also perused. It also states "makes

solemn affirmation and oath and say that statements

made in para Nos.1 to 26 of the accompanying election

petition about commission of corrupt practices of ten

Nagpur Parliamentary Constituencies and a particular

.....34/-

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379 Election Petition3.24

of such corrupt practices mentioned in para Nos.1 to 26

of the same petition are true to my knowledge and

belief and information. The documents/annexures

annexed to the petition are obtained from the official

record mostly from official website of Elections of India

and from the office of returning officer to the election,

are mentioned.

26. Section 83(1)(c) lays down that an election

petition 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.

Proviso to Section 83(1)(c) provided that where the

petitioner alleges any corrupt practices, 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.

.....35/-

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379 Election Petition3.24

27. Order VI Rule 15 Sub Rule (2) of the CPC states

that The person verifying shall specify, by reference to

the numbered paragraphs of the pleading, what he

verifies of his own knowledge and what he verifies

upon information received and believed to be true.

28. The non disclosure of grounds or sources or

information in an election petition to be filed within 45

days from the date of election of the returned candidate

will have to be scrutinized from two points of view (1)

the non disclosure of the grounds will indicate that the

election petitioner did not come forward with the

sources of information at the first opportunity. The real

importance of setting of sources of information at the

time of the presentation of the petition is to give the

other side to test genuineness of veracity of sources of

information; and (2) the election petitioner will not be

.....36/-

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379 Election Petition3.24

able to make any departure from the sources or

grounds.

29. This aspect is also dealt with by this Court in the

case of Manohar @ Sagar s/o Punklik Dabrase vs.

Election Commission of India, New Delhi and ors supra

wherein by referring Section 83 of the RP Act held in

para No.13 that, "It is true that requirement of proper

verification as prescribed by Section 83(1)(c) of the

said Act is not mandatory in nature but the same is

directory. However such verification as prescribed is

necessary to indicate the source of knowledge of

material facts received by the election petitioner to

enable the returned candidate to defend his election.

The verification clause reproduced hereinabove does

not indicate that the election petitioner had personal

knowledge of the alleged mismatch as pleaded by him

in paragraph 5 of the election petition. He merely states

.....37/-

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379 Election Petition3.24

that the facts stated in paragraphs 1 to 11 were true

and correct. Be that as it may, in the light of the legal

position as referred to hereinabove except for stating

that there was a mismatch in the number of votes

polled and number of votes counted, nothing further

has been stated. It is not sufficient to merely state that

there has been non-compliance with the provisions of

the said Act and the Rules framed therein. It is also

necessary to indicate that as a result of such violation,

the election of the returned candidate has been

materially affected. The pleadings reproduced

hereinabove do not indicate any pleadings whatsoever

to at least indicate that as a result of non-compliance

with the provisions of the said Act and the Rules, the

election of the returned candidate has been materially

affected. It is not sufficient to merely state that there

has been non-compliance with the provisions of the said

.....38/-

Judgment

379 Election Petition3.24

Act and the Rules framed therein. It is also necessary

to indicate the source of knowledge of material facts

received by the election petitioner to enable the

returned candidate to defend his election.

30. In the election petition, the petitioner has stated

on oath that whatever has been stated in para Nos.1 to

26 of the election petition is true and correct to the best

of his knowledge. In the aforesaid verification and the

affidavit, there is no statement made as to what is his

source of information. It is also not stated which

portion is as per his own knowledge and which portion

is on the basis of information received by him. There is

also no statement that the facts contained in para Nos.1

to 6 were based on his knowledge. The proper

verification analyzing and authenticating the pleadings

is mandatory requirement under Section 83(1)(c) of

the RP Act and as there was failure to comply the same,

.....39/-

Judgment

379 Election Petition3.24

the same is fatal to the petitioner's case. Moreover,

there is no pleading to indicate that the result of the

returned candidate has been materially affected.

31. Respondent No.5 raised another ground that the

petition does not disclose any cause of action as

"material facts" and "material particulars" are not

disclosed which would constitute the cause of action.

The pleadings in the petition are that on many polling

booths the Code of Conduct was being violated by the

main ruling party. The voters were given the chits

having photographs of the BJP Candidates along with

the symbol of BJP. There were separate machines

carried by several BJP workers and the said machines

were having special software through which if the

voters names are seen, the total details were given to

the voters in a printed form along with the photographs

of the BJP Candidates and Symbol. The link was

.....40/-

Judgment

379 Election Petition3.24

circulated to the mobile phones of the BJP workers. The

said software was created by the BJP. The chits

circulated to the voters were having photographs of

respondent No.5 - Nitin Jairam Gadkari and symbol of

BJP. Thus, on many polling booths, the Code of

Conduct was violated.

32. Section 83(1)(a) of the RP Act, states that an

election petition shall contain a concise statement of the

material facts on which the petitioner relies. Order VI

Rule (2) of the CPC , deals with pleading to state

material facts and not evidence. It states that every

pleading shall contain, and contain only, a statement in

a concise form of the material facts on which the party

pleading relies for his claim or defence, as the case may

be, but not the evidence by which they are to be

proved.

.....41/-

Judgment

379 Election Petition3.24

33. A bare perusal of the above two provisions would

show that the first part of Order VI Rule 2 of the CPC is

similar to Sub Section (1)(a) of Section 83 of the RP

Act. It is imperative for an election petition to contain a

concise statement of the material facts on which the

election petitioner relies. What are material facts?

34. All basic and primary facts which must be proved

at the trial by a party to establish the existence of a

cause of action or defence are material facts. The bare

allegations are never treated as a material facts. The

material facts are such facts which afford a basis for the

allegations made in the election petition. The phrase

"material facts" has neither been defined in the RP Act

nor in the CPC and, therefore, it has been understood

by the courts in general terms to mean the entire

bundle of facts which would constitute a complete

cause of action. The 'material facts' are facts upon

.....42/-

Judgment

379 Election Petition3.24

which the plaintiff's cause of action or defendant's

defence depends. Broadly, speaking, all primary or

basic facts which are necessary either to prove the

cause of action by the plaintiff or defence by the

defendant are "material facts".

35. According to the dictionary meaning, "material"

means "fundamental", "vital", "basic", "cardinal",

"central", "crucial", "decisive", "essential". What

particulars could be said to be "material facts" would

depend upon the facts of each case. The various

pronouncements of the Hon'ble Apex Court as well as

this court explain what is "material facts".

36. In the case of Sudarsha Avasthi vs. Shiv Pal Singh

supra, relied by learned Senior Counsel for respondent

No.5, it is observed that as per Section 83 of RP Act, it

is duty of the person who files election petition and

.....43/-

Judgment

379 Election Petition3.24

levels allegations of corrupt practices to disclose the

"material facts" on which he relies and that he should

set forth the full particulars of corrupt practices that the

petitioner alleges, including the full statement as far as

possible disclosing the names of the parties alleged to

have committed such corrupt practice and the date and

the place of commission of each such practice and the

same shall be filed by the petitioner and verified in the

manner as laid down in the CPC. Apart from this, he

has to file an affidavit in prescribed form in support of

the allegation of such corrupt practice and he should

disclose the particulars thereof. If he wants to rely on

any document then it should be annexed to the petition

signed by the petitioner and verified in the same

manner as the petition.

The Hon'ble Apex Court further observed that

Section 123 of the Act deals with the corrupt practice.

.....44/-

Judgment

379 Election Petition3.24

What shall be the corrupt practice have been

enumerated in Section 123 of the Act, like; bribery

which has been defined that any gift, offer or promise

by a candidate or his agent or by any other person with

the consent of a candidate or his election agent of any

gratification, to any person whomsoever, with the

object, directly or indirectly of including a person to

stand or not to stand as, or to withdraw or not to

withdraw from being a candidate at an election or an

elector to vote or refrain from voting at an election, or

as a reward to a person for having so stood or not

stood, or for having withdrawn or not having

withdrawn his candidature; or an elector for having

voted or refrained from voting. Therefore, the detailed

particulars are required to be given that how a person is

being bribed by various modes. All these particulars

.....45/-

Judgment

379 Election Petition3.24

have to be given in the manner provided in Section 123

of the Act.

37. In the case of Anil Vasudev Salgaonkar vs.

Naresh Kushali Shigaonkar supra, the Hon'ble Apex

Court held that 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 a period of limitation.

Since the object and purpose is to enable the opposite

party to know the case he has to meet with, in absence

of pleading, a party cannot be allowed to lead evidence.

Whether in an election petition, a particular fact is

material or not and as such is required to be pleaded is

depended on the nature of charges levelled and the

circumstances of the case. 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

.....46/-

Judgment

379 Election Petition3.24

the mandate of Section 83(1)(a). The election petition

must contain a concise statement of 'material facts' on

which the petitioner relies. In the context of charge of

corrupt practice, 'material facts' would mean all basic

facts constituting ingredients of the particular corrupt

practices alleged, which the petitioner (the respondent

herein) is bound to substantiate before he can succeed

on that charge. It is also well settled that if 'material

facts' are missing, they cannot be supplied after expiry

of period of limitation for filing the election petition

and the pleadings become deficient.

By referring the catena of decisions in the above

said judgment, the Hon'ble Apex Court held that

position is well settled an election petition can be

summarily dismissed if it does not furnish the cause of

action in exercise of the power under CPC. Appropriate

orders in exercise of powers under the Code can be

.....47/-

Judgment

379 Election Petition3.24

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.

38. In Jitu Patnaik vs. Sanatan Mohakud and ors

supra, by referring earlier judgments, the Hon'ble Apex

Court distinguished between 'material facts' and

'material particulars' and observed that, "a distinction

between 'material facts' and 'material particulars'

however must not be overlooked. 'Material facts'

primarily are 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 parties. They amplify the

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.

.....48/-

Judgment

379 Election Petition3.24

'Particulars' thus ensures conduct of fair trial and would

not take the opposite party by surprise.

39. Recently, in Kanimozhi Karunanidhi vs.

A.Santhana Kumar and ors supra by mentioning the

various provisions, the Hon'ble Apex Court held that,

"an election petition must contain a concise statement

of "material facts" on which the petitioner relies, is that

such compliance 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

.....49/-

Judgment

379 Election Petition3.24

made in the petition and would constitute the cause of

action as understood in the CPC. 'Material facts' would

include positive statements of facts as also positive

statement of the negative fact.

40. This court also in the case of Dr.Rameshkumar

Bapuraoji Gajbe vs. Election Commission of India, New

Delhi and ors supra held that every fact which shall

have to be proved to formulate the complete cause of

action is "material fact". In essence, the '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. It is trite law that an election petition which is

a bereft of 'material facts' would entail dismissal at the

threshold on the premise that omission of single

"material fact" would lead to incomplete cause of action

and that such petition is not an election petition at all.

.....50/-

Judgment

379 Election Petition3.24

41. In Ram Sukh vs. Dinesh Aggarwal supra, the

Hon'ble Apex Court observed that 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 and anr vs. George

Fernandez and ors, reported in 1969 AIR 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

.....51/-

Judgment

379 Election Petition3.24

have to meet; (iv) material facts and particulars are

distinct matters - material facts will mention statements

of fact and particulars will set out 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.

42. Thus, by these catena of decisions, it is reiterated

that it was necessary for the election petitioner to aver

specifically in what manner the result of the election

insofar as it concerned the returned candidate is

affected. The pleading is vague and does not spell out

as to how the election results were materially affected

because of these two factors. These facts fall short of

being "material facts" as contemplated in Section 83(1)

(a) of the Act to constitute a complete cause of action in

.....52/-

Judgment

379 Election Petition3.24

relation to allegation under Section 100(1)(d)(iv) of

the Act.

43. Thus, 'material facts' as to corrupt practices by

whom, at which place and how the election materially

affected are basic requirements. In order to constitute

corrupt practice under Section 123(5) of the RPC Act,

hiring or procuring of machines which were used to

generate the slips by candidate or his agent or any

other person with his consent is the first essential

ingredients which is absent in the present case. The

entire pleadings nowhere disclose as to who has

procured the said machines, who were using the said

machines and whether the said machines were used

with the consent of the returned candidate or not and

how it is used to influence the voters which requires to

be pleaded to make out a cause or corrupt practices.

.....53/-

Judgment

379 Election Petition3.24

44. The petitioner has also claimed that the returned

candidate by way of undue influence influenced the

voters and, therefore, the election of the returned

candidate deserves to be quashed.

45. It is necessary to see what constitutes the "undue

influence".

46. It is an essential ingredient of the corrupt

practice under Sub section (2) of Section 123 of the RP

Act which shows that there should be any direct

interference or attempt to interfere on the part of the

candidate or his agent or of any person with the

consent of the candidate or his agent with the free

exercise of any electoral right.

47. In the case of V.T.Khanzode vs. RBI, reported in

MANU/SC/0201 1982; D.K.Trivedi and Sons vs. State

of Gujarat, reported in MANU/SC/0636/1986, State of

.....54/-

Judgment

379 Election Petition3.24

J & K vs. Lakhwinder Kumar, reported in (2013)6 SCC

333, BSNL vs. Telecom Regulatory Authority of India,

reported in MANU/SC/1264/2013 the following

principles are culled out as to the "undue influence":

"(i) The words "undue influence" are not to be understood or conferred a meaning in the context of English statute.

(ii) The Indian election law pays regard to the use of such influence having the tendency to bring about the result that has contemplated in the clause.

(iii) If an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of undue influence.

(iv) The words "direct or indirect" used in the provision have their significance and they are to be applied bearing in mind the factual context.

.....55/-

Judgment

379 Election Petition3.24

(v) Canvassing by a Minister or an issue of a whip in the form of a request is permissible unless there is compulsion on the electorate to vote in the manner indicated.

(vi) The structure of the provisions contained in Section 171-C of IPC are to be kept in view while appreciating the expression of 'undue influence' used in Section 123(2) of the 1951 Act.

(vii) The two provisos added to Section 123(2) do not take away the effect of the principal or main provision.

(viii) Freedom in the exercise of judgment which engulfs a voter's right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage.

(ix) There should never be tyranny over the mind which would put fetters and scuttle the free exercise of an electorate.

.....56/-

Judgment

379 Election Petition3.24

(x) The concept of undue influence applies at both the stages, namely, pre- voting and at the time of casting of vote.

(xi) "Undue influence" is not to be equated with "proper influence" and, therefore, legitimate canvassing is permissible in a democratic set up.

(xii) Free exercise of electoral right has a nexus with direct or indirect interference or attempt to interfere."

48. The Hon'ble Apex Court in Bachan Singh vs.

Prithvi Singh and ors supra dealt with this issue and

observed that, doubtless the definition of "undue

influence" in sub-section (2) of Section 123 is couched

in very wide terms, and on first flush seems to cover

every conceivable act which directly or indirectly

interferes or attempts to interfere with the free exercise

of electoral right. In one sense even election

propaganda carried on vigorously, blaringly and

.....57/-

Judgment

379 Election Petition3.24

systematically through charismal leaders or through

various media in favour of a candidate by recounting

the glories and achievements of that candidate or his

political party in administrative or political field, does

meddle with and mould the independent volition of

electors, having poor reason and little education, in the

exercise of their franchise. That such a wide

construction would not be in consonance with the

intendment of the legislature is discernible from the

proviso to this clause. The proviso illustrates that

ordinarily interference with the free exercise of

electoral right involves either violence or threat of

injury of any kind to any candidate or an elector or

inducement or attempt to induce a candidate or elector

to believe that he will become an object of divine

displeasure or spiritual censure. The prefix "undue"

indicates that there must be some abuse of influence.

.....58/-

Judgment

379 Election Petition3.24

"Undue influence" is used in contra-distinction to

"proper influence". Construed in the light of the proviso,

clause (2) of Section 123 does not bar or penalize

legitimate canvassing or appeals to reason and

judgment of the voters or other lawful means of

persuading voters to vote or not to vote for a candidate.

Indeed, such proper and peaceful persuasion is the

motive force of our democratic process."

49. In view of the above observations and the

principles laid down by the Hon'ble Apex Court, from

the pleadings of the petitioner nowhere it reflects that

there was any direct or indirect interference or attempt

to interfere on the part of the candidate.

50. Thus, seeing from any angle, it become clear that

in absence of pleadings as to the "material facts" to the

extent of that the election of respondent No.5 - Nitin

.....59/-

Judgment

379 Election Petition3.24

Jairam Gadkari a returned candidate was materially

affected, it would have to be held that the election

petition is based on an incomplete cause of action.

51. Thus, in view of the law as laid down in the case

of Ram Sukh vs. Dinesh Aggarwal supra and in view of

the failure on the part of the petitioner to aver the

"material facts" and to aver the contention as to

election of returned candidate was materially affected

insofar as it is concerned, the election petition is liable

to be summarily dismissed without trial. No useful

purpose would be served by permitting the election

petitioner to proceed for trial in absence of any

pleadings in the election petition that the election of the

returned candidate was required to be declared void

under Section 100(1)(d)(iv) of the Act. In absence of

such basic averments, it would also not be permissible

for the election petitioner to lead any evidence in that

.....60/-

Judgment

379 Election Petition3.24

regard. Therefore, the election petition is liable to be

dismissed under the provisions of Order VII Rule 11(a)

of the CPC as the complete cause of action is absent for

declaring the election of the returned candidate to be

void under Section 100(1)(d)(iv) of the Act.

Accordingly, under Section 98(a) of the said Act, the

present election petition stands dismissed.

52. In terms of Section 119 of the said Act, the

returned candidate is entitled to cost incurred by him in

contesting the election petition. The costs be

accordingly be paid to the returned candidate by

adopting the course prescribed by Section 121 of the

said Act.

53. Civil Application No.139/2025 is accordingly

allowed.

.....61/-

Judgment

379 Election Petition3.24

The Election Petition stands dismissed and

disposed of.

Civil Applications, if any, are disposed of.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 20/03/2025 17:19:19