[Cites 16, Cited by 0]
Bombay High Court
Pramod Ratan Patil vs Rajesh Govardhan More on 9 April, 2026
2026:BHC-OS:9022
AEPL-10196-2025 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION (L) NO. 10196 OF 2025
IN
ELECTION PETITION NO. 24 OF 2025
Rajesh Govardhan More ]
Age : 55, Occ. : Business ]
Satish Bunglow, Reti Bandar Road, ]
Near Navnath Temple, Motha Gaon, ]
Dombivali (West), Tal. Kalyan, District. Thane ] ...Applicant
In the matter of :
Pramod Ratan Patil, ]
Age : 50, Occ. Business. ]
Having address at Shanti Villa No. 6, ]
Casa Bela, Golflink, Palava City, ]
Kalyan Shill Road, Dombivli (E), ]
Tal. Kalyan, District - Thane - 421 2024. ] ...Petitioners
Versus
1. Rajesh Govardhan More ]
Age : 55, Occ. : Business ]
Satish Bunglow, Reti Bandar Road, ]
]
Near Navnath Temple, Motha Gaon,
]
Dombivali (West), Tal. Kalyan, ]
District Thane ]
2. Subhash Ganu Bhoir ]
Age : 66, Occ. Business, ]
Chandraratna Villa, Mumbra Panvel Road, ]
]
Near Hanuman Hotel, Shilphata, Post -
]
Padle, Tal. - Thane, District - Thane ]
3. Deepak Datta Khandare ]
Age : 41, Occ. Business ]
Aai Mumbra Devi Chawl No. 03, Gala No. 11, ]
]
Shlok Nagar, Dativali Road, Diva (East),
]
Taluka - Thane, District Thane 400612. ]
4. Vikas Prakash Ingle ]
Age : 42, Occ : Business ]
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304, 3rd Floor, Sant Krupa Apartment, ]
Sandap Gaon, Manpada Road, ]
Tal. Kalyan, Dist. Thane 421 204. ]
5. Habiburrehman Khan ]
Age : 64, Occ : Business ]
Flat No. 507, Mannat Housing Society, ]
]
Firoj Height, Khardi Road,
]
Mumbra - Thane, Dist. Thane, 400612. ]
6. Ashwini Ashok Gangavane ]
Age : 44, Occ. : business, ]
1/1, Sai Siddhi Society, ]
]
Nand Deep Nagar, Puna Link Road, Chakki
]
Naga, Kalyan (East), Taluka - Kalyan, ]
District - Thane ]
7. Chandrakant Rambhaji Mote ]
Age : 63, Occ. : Reporter, ]
Amber Heights, Row House, K-2, ]
]
Near Green City, B. Cabin Road, Ambernath
]
(East), Taluka - Ambernath, District - Thane ]
8. Deepak Ramkisan Bhalerao ]
Age : 32, Occ. : Business, ]
Hedutane Gaon, Badlapur Pipe Line Road, ]
Kalyan, Dist - Thane. ]
9. Narsing Dattu Gaisamudre ]
Age : 54, Occ. : Service ]
Mahatma Gandhi Nagar, ]
]
Tata Power House,
]
Near Satyanarayan Kirana Store, ]
Pisavli, Kalyan (East), Tal. Kalyan, ]
Dist. Thane 421306. ]
10. Paresh Prakash Badve ]
Age : 36, Occ. : Service ]
4, Nagubai Niwas, Ground Floor, ]
]
Devi Chowk, Shastri Nagar,
]
Dombivali (West), Tal. Kalyan, ]
District Thane 421 202. ]
11. Priyanka Gajanan Mayekar ]
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Age : 36, Occ. Business ]
Flat No. 105, D Wing, Mangeshi Dezzel, 90 Ft ]
Road, Near Krishnai Bunglow, Dombivali ]
]
(East), Tal. Kalyan, Dist. Thane 421 204.
]
12. Shiva Krishnamurthi Iyer ]
Age : 62, Occ. Advocate ]
17, Murit Bhavan, Ravi Kiran Society, Chira ]
Nagar, Sagaon, Dombivali (East), Tal. Kalyan, ]
Dist. Thane 421204. ] ...Respondents
------------
Mr. Nilesh Pandey, Mr. Sameer S. Vispute, Ms. Sayali Shinde, Mr. Rishabh Dubey
for Petitioner.
Mr. Chirag Shah, Mr. Bhavya Shah i/b Mr. Vishal Acharya for
Applicant/Respondent No. 1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 26th March, 2026.
Pronounced on : 9th April, 2026.
Judgment :
1. The present Application under Order VII, Rule 11 of Code of Civil
Procedure, 1908 [for short, "CPC"] is at the instance of returning
candidate whose election is called in question by the present Election
Petition. The Applicant seeks dismissal of the Election Petition as being
barred by limitation, non disclosure of cause of action and under
Section 86(1) of Representation of People Act, 1951 [for short, "R.P.
Act"] for non compliance of Section 81 of R.P. Act.
2. By the Election Petition, the election of the returning candidate
from constituency no. 144-Kalyan Rural, District - Thane to
Maharashtra State Legislative Assembly Elections held on 20 th
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November, 2024, the results of which came to be declared on 23 rd
November, 2024 is questioned and declaration is sought that the
Election Petitioner has been duly elected in the election to 144-Kalyan
Rural constituency, Maharashtra held on 20th November, 2024.
3. The Petition inter alia seeks direction to the District Election
Officer/ Returning Officer/Election Commissioner of India to count and
tally the electronic count data in the Control Unit (C.U) with manual slip
count of VVPAT in respect of 17 EVM sets and to secure the units, to
declare the Respondent No 1's election as void and to declare the
Election Petitioner as the elected candidate. It is pleaded that the
Election Petitioner secured 74,412 votes and the Respondent No.
1/returned candidate secured 1,40,770 votes and the margin was only
66,358 votes.
4. Mr. Shah, learned counsel appearing for Applicant submits that
Election Petition fails to disclose the cause of action. Drawing attention
to the pleadings in Paragraph 8(b) of the Election Petition, he submits
that the Election Petitioner has failed to disclose the source of the
information. He submits that as the election has been questioned
under Section 100 (1)(d)(iii) of R.P. Act, it is necessary to plead and
substantiate that the results of the election insofar as it concerns the
returning candidate is materially affected by improper reception of
votes or void votes. He would further submit that under Section 101 of
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R.P. Act, a candidate other than the returned candidate can be declared
elected if it is shown that the Petitioner or other candidate received
majority of valid votes or that but for the votes obtained by returned
candidate by corrupt practices, the Petitioner or such other candidate
would have obtained majority of the valid votes. He would submit that
there is no averment to satisfy the requirements of Section 101(b) and
there is no material particulars of the corrupt practices alleged. He
submits that though the relief is sought against the Returning Officer/
Election Commissioner, the Petitioner has not impleaded them as party
to the Election Petition.
5. He would further submit that the results were declared on 23 rd
November, 2024 and the period of 45 days expired on 6 th January,
2025. The Petition has been lodged on 7th January, 2025 and on 9th
January, 2025, the concise statement in support of the Petition was
filed and hence, the Petition is barred by limitation. In support, he
relies upon the following decisions :
Ravindra Dattaram Waikar vs. Amol Gajanan
Kirtikar1
Kanimozhi Karunanidhi vs. A. Santhana Kumar2
Anil Yeshwant Desai vs. Mahendra Tulshiram
Bhingardive3
1 2024 SCC Online Bom 3828.
2 2023 SCC OnLine SC 573.
3 Application (L) No. 29382 of 2024, decided on 15th October, 2024.
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Karim Uddin Barbhiya vs. Aminul Haque Laskar4
Mangani Lal Mandal vs. Bishnu Deo Bhandari5
Jyoti Basu vs. Debi Ghosal6
Dr. P. Nalla Thampy Thera vs. B. L. Shanker7
6. Mr. Pandey, learned counsel appearing for Respondent-original
Petitioner would submit that the results were declared on 23 rd
November, 2024 and the notification was issued on the next day. He
submits that for the purpose of calculating the period of limitation, the
date on which the results have been declared has to be excluded. He
submits that as the last date for filing of the Election Petition was on
7th January, 2025, the Registry has accepted the lodging of the
Petition.
7. He would further submit that the Applicant's case is that the
election is questioned on the ground of corrupt practice which is not
the case of the Election Petitioner. He submits that it is the specific
case of the Petitioner that there is discrepancy between the manmade
electronic device and the vote count shown in the machine which
would not match with VVPAT slips which raises a triable issue. He
submits that non-joinder of the parties is a curable defect and the
Petition cannot be rejected on that ground. He submits that Petition
4 2024 SCC OnLine SC 509.
5 (2012) 3 SCC 314.
6 (1982) 1 SCC 691.
7 (1984) 1 S.C.R. 688.
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discloses the cause of action and cannot be rejected at the threshold.
He submits that the concise statement of facts is in conformity with
the statutory provisions. He would further submit that the request was
made to the District Election Officer for recounting of VVPAT slips and
that it is specifically pleaded in paragraph no. 12 that the result of the
election of the returned candidate was affected materially as there
was no counting of VVPAT slips for purpose of cross verification with
the EVM data and that the Petitioner received majority of valid votes.
In support, he relies upon the following decisions :
Membor Gogoi vs. Renupama Rajkhowa8
Thangjam Arunkumar vs. Yumkham Erabot Singh9
Gurudev Singh vs. Harvinder Singh10
Ashraf Kokkur vs. K. V. Abdul Khader11
Patel Dipakbhai Chimanbhai vs. Chavda Ishwarbhai
Kohdabhai12
Ashwani Kumar Sharma vs. Yaduvansh Singh and
Others13
Tarun Prasad Chatterjee vs. Dinanath Sharma14
REASONS AND ANALYSIS :
8. The present Application seeks dismissal of the Petition on the
8 1992(1) GLJ 149.
9 AIR(SC) 4531: 2023.
10 2022(3) Apex Court Journal 360:2022.
11 AIR (SCW) 4913:2014.
12 2005(12) SCC 187.
13 AIR (SC) 337:1997.
14 Appeal (Civil) No. 2937 of 2000 decided on 10th October, 2000 by Hon'ble Supreme Court.
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ground of being barred by limitation and non disclosure of cause of
action. Dealing first with the issue of limitation, Section 81 of R.P. Act
provides that an Election Petition calling in question any election may
be presented on one or more 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 45 days from, but not earlier than the
date of election of the returned candidate. The expression used in
Section 81 of R.P. Act is "the date of election".
9. Section 66 of R.P. Act provides that when the counting of votes
has been completed, the returning officer shall in the absence of any
direction by the Election Commission to the contrary, forthwith declare
the result of the election in the manner provided by the Act or Rules
made thereunder. Section 67 of R.P. Act, provides that as soon may be
after the result of an election has been declared, the returning officer
shall report the result to the appropriate authority and Election
Commission and in the case of an election to the House of Parliament
or of Legislature of a State also to the Secretary of that House and the
appropriate authority shall cause to be published in the Official
Gazette the declarations containing the names of the elected
candidates.
10. Section 67A of R.P.Act reads as under:
"67A. Date of election of candidate - For the purposes
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of this Act, the date on which a candidate is declared by
the returning officer under the provisions of section 53
or section 66, to be elected to a House of Parliament or
of the Legislature of a State shall be the date of election
of that candidate."
11. The date of election for the purpose of Section 81 of R.P. Act is
the date of declaration of results by the returning officer and the
Election petition is required to be filed within forty five days from the
date of election. The pleading in paragraph 1 of the Election Petition is
that the elections were held on 20 th November, 2024, with the vote
counting conducted on 23rd November, 2024 in which post election
counting as per the results declared, the Petitioner secured the second
position. The results were declared on 23 rd November, 2024 as per the
Election Petition. Under Section 12 of the Limitation Act, 1963, for the
purpose of computation of period of limitation, the day from which
such period is to be reckoned, shall be excluded. The date of
declaration of results i.e. 23rd November, 2024 is required to be
excluded and the period of forty five days would expire on 7 th January,
2025. The Election Petition has been filed on 6th January, 2025 within
the period of forty five days from date of election.
12. The concise statement of material facts under Section 83 of R.P.
Act has been filed on 9th January, 2025 beyond the period of 45 days.
The delayed filing of the concise statement, according to Mr. Shah,
would entail dismissal of the Election Petition in limine. It would be
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apposite to note Section 86 of R.P. Act which provides for dismissal of
Election Petition at the threshold only for violations of Section 81,
Section 82 or Section 117 of R.P. Act.
13. In T.M. Jacob vs Poulose15, the Hon'ble Apex Court observed in
paragraph 38 as under:
"38..............That apart, to our mind, the legislative
intent appears to be quite clear, since it divides
violations into two classes -- those violations which
would entail dismissal of the election petition under
Section 86(1) of the Act like non-compliance with Section
81(3) and those violations which attract Section 83(1) of
the Act, i.e., non-compliance with the provisions of
Section 83. It is only the violation of Section 81 of the
Act which can attract the application of the doctrine of
substantial compliance as expounded in Murarka Radhey
Shyam [AIR 1964 SC 1545 : (1964) 3 SCR 573] and Ch.
Subbarao[AIR 1964 SC 1027 : (1964) 6 SCR 213] cases.
The defect of the type provided in Section 83 of the Act,
on the other hand, can be dealt with under the doctrine
of curability, on the principles contained in the Code of
Civil Procedure......."
14. The non compliance of provisions of Section 83 has been held to
be capable of being dealt with under the doctrine of curability. It is
not the case of the Applicant that absent the concise statement of
material facts, the Election Petition cannot be treated as a Election
Petition as contemplated under Section 81(1) of R.P. Act. Similarly, the
non joinder of Election Officer and the Returning Officer is a curable
defect, which cannot result in dismissal of the Petition. The Election
Petition cannot be held to be barred by limitation nor can be dismissed
15 (1999) 4 SCC 274.
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under Section 86 of R.P. Act.
15. Dealing with the contention of non disclosure of cause of action,
under the statutory provisions of R.P. Act, 1951, the election can be
questioned only on the grounds set out in Section 100(1) of R.P. Act.
As the Election Petitioner also seeks declaration that the Petitioner be
declared as elected, the provisions of Section 101 of R.P. Act are
attracted. Section 100(1) and Section 101 of the R.P. Act, 1951, reads
as under :
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the High
court is of opinion--
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified, to
be chosen to fill the seat under the Constitution or
this Act or the Government of Union Territories Act,
1963; or
(b) that any corrupt practice has been committed by
a returned candidate or his election agent or by any
other person with the consent of a returned
candidate or his election agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected--
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent, or
(iii) by the improper reception, refusal or
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rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this Act,
the High Court shall declare the election of
the returned candidate to be void."
"101. Grounds for which a candidate other than the
returned candidate may be declared to have been
elected.--
If any person who has lodged a petition has, in addition to
calling in question the election of the returned candidate,
claimed a declaration that he himself or any other
candidate has been duly elected and the High Court is of
opinion--
(a) that in fact the petitioner or such other candidate
received a majority of the valid votes; or
(b) that but for the votes obtained by the returned
candidate by corrupt practices the petitioner or such
other candidate would have obtained a majority of the
valid votes,
the High Court shall, after declaring the election of the
returned candidate to be void declare the petitioner or
such other candidate, as the case may be, to have been
duly elected."
16. Against the statutory background, the pleadings in the Petition
will have to be perused to ascertain whether the Election Petition
discloses a cause of action. The main grounds on which the election has
been challenged is by reason of discrepancy between the vote count
shown in the Control Unit of EVM and the VVPAT slips. As is known,
VVPAT i.e. voter verified paper audit trail is an independent vote
verification system. During the process of elections, the VVPAT
machine generates paper slips which contains the necessary details as
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to the political party symbol, name of candidate etc. After the vote is
cast, the voter gets to view the slip on the VVPAT to verify correct
casting of vote.
17. The substratum of the Petitioner's case is set out in paragraph 9
of the Petition. I have taken the grounds ad-seriatim to consider
whether the allegations gives rise to cause of action for the Election
Petition to proceed for trial. Paragraph 9(d) (i) and (ii) pleads as under:
"(i) That in respect of one of the booth number in the
constituency of Petitioner i.e. booth No.338 notably it
has been found that the B.U. No. and C.U. No. maintained
on the EVM machines were different from the Form No.
17C given by the ECI. Hereto Annexed and marked
Exhibit-"D" is the copy of said Form No. 17C of booth
No. 338.
(ii) That in respect of one of the EVM machine at booth
No. 45 it was been observed that the EVM machine when
opened from the container at which time there was no
any Form No.17C of the said respective EVM was found
and subsequently the EVM shown discrepancy and error
as "not ok". Hereto Annexed and marked Exhibit-"E" is
the copy of said Form No. 17C of Booth No. 45."
18. As the discrepancy is alleged in the B.U and C.U. numbers and
Form 17C, it would be relevant to refer to the concerned Rule which
prescribes Form 17C. Rule 49S of The Conduct of Election Rules, 1961
provides that the presiding officer at the close of the poll shall prepare
an account of votes recorded in Form 17C and to furnish to every
polling agent present at the close of the poll a true copy of the entries
made in Form 17C. The prescribed Form 17C is in two parts : Part I
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contains the details of the control units, balloting unit, total number of
votes recorded as per the voting machine etc and Part II gives
particulars of number of votes displayed on the control unit, the result
of counting etc. Form 17C thus provides for accounts of the votes
recorded.
19. Where the allegation of discrepancy is premised on the
difference in the B.U. and C.U. numbers mentioned on EVM and the
numbers given in Form 17C, the basic material fact to be pleaded are
the B.U. and C.U. numbers which was mentioned on the EVM in
contradistinction to the Form No 17C. The pleading in paragraph 9(c)(i)
of the Election Petition makes no mention of the numbers appearing
either on the EVM or Form 17C and merely annexes Form 17C of Booth
No 338 as Exhibit "D". Perusal of Form 17C reflects the B.U. and C.U.
numbers and VVPAT Id. Based only on the document that is Form 17C
without any pleading in that respect, no case of discrepancy between
the numbers as alleged is made out.
20. Similarly, the allegation in respect of one of the EVM in Booth
No 45 is that there was no Form No 17C of the said EVM and
subsequently the EVM showed discrepancy and error. The pleading
does not proceed further so as to even make a bald assertion that the
said EVM though in error was used for purpose of voting or that the
Form 17C was furnished in respect of the said EVM. The Petition
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proceeds to annex Form 17C at Exhibit "E" with the exhibit being
described as copy of Form No 17C of Booth No 45. There is no nexus
established between the Form 17 C which is annexed to the Petition
and the said EVM machine at Booth No 45. There is no pleading about
the nature of discrepancy or about the alleged error. With these
unconnected assertions, the Petition does not disclose any case about
discrepancies in so far as the the EVM and Form 17C is concerned.
21. The allegation in paragraph 9(d)(iii) is incomprehensible and
reads as under:
"(iii) That the list provided by the election commission of
India containing the B.U.ID, C.U.ID and VVPAT ID could
not get tallied in 3 EVMs from the list provided by the
election commission through Returning Officer / ECI in
respect of which the list is annexed with this present
with the highlighted 3 serial numbers, contained
discrepancy in the round of counting. Hereto Annexed
and marked Exhibit- "F-Colly" is the copy of said list
provided by the election commission of India containing
the B.U. ID, C.U. ID and VVPAT ID to the constituency of
the Petitioner"
22. It appears that the case of the Petitioner is that there was discrepancy
in the list provided by Election Commission of India and the list
provided by the Returning Officer/ECI in respect of 3 EVMs, which
could not be tallied. The list is annexed at Exhibit F-colly" and the 3
serial numbers are stated to be highlighted. Exhibit "F" is described as
copy of list provided by Election Commission of India containing the BU
ID, CU ID and VVPAT ID. Exhibit "F" is photocopy of list provided by
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Election Commission of India. There are no highlighted serial numbers
in Exhibit "F" of the Court record and the pleading itself should have
set out the 3 EVMs whose numbers did not tally. From the pleading it is
difficult to discern at to which EVMs at which serial numbers of which
list could not be tallied. There is no list annexed as claimed to have
been provided by the Election Commission through Returning Officer.
There is no pleading as to the manner in which the alleged discrepancy
resulted in improper reception of votes or acceptance of void votes.
23. Paragraph 9(d) (iv), (v) and (vi) alleges improper sealing of EVM
and symbol loading units and reads as under:
"(iv) No any proper sealing process of EVM machines qua
containers under which the EVMs are secured or been
sealed under CCTV surveillance and in presence of
candidate or their representatives/polling agents, which
being mandate of law and non-following the mandatory
recourse itself creates immense doubt about conduct of
officers concern, who are ultimately officer of the state
in which the subsisting government belongs to same
political parties and there is every chance of casing
inducement, threat, favour and such other impressions
cause nuisance and annoyance in the sealing process.
(v) That there was no any proper sealing of symbol
loading units.
(vi) The CCTV surveillance of counting halls would clearly
indicate that the sealing containers were never bearing
any signature of the candidates or the polling agents."
24. The material fact to be pleaded is the manner in which the
sealing process of EVM and symbol loading units was carried out and
the non conformity with the applicable statutory
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provisions/orders/directions. In that context Rule 49T of The Conduct
of Elections Rules, 1961 reads as under:
"49T. Sealing of voting machine after poll.--(1) As soon
as practicable after the closing of the poll, the presiding
officer shall close the control unit to ensure that no
further votes can be recorded and shall detach the
balloting unit from the control unit 1 [and from the
printer, where printer is also used, so however, that the
paper slips contained in the drop box of the printer shall
remain intact]. (2) 2 [The control unit, the balloting unit
and the printer, where it is used, shall] thereafter be
sealed, and secured separately in such manner as the
Election Commission may direct and the seal used for
securing them shall be so affixed that it will not be
possible to open the units without breaking the seals. (3)
The polling agents present at the polling station, who
desire to affix their seals, shall also be permitted to do
so."
25. Sub Rule (3) of Rule 49T permits the polling agents who desire to
affix their seals if they so desire. It is not the pleaded case of the
Petitioner that the polling agents were not permitted to do so. As to
what is the non conformity in the sealing process is not set out in the
Election Petition.
26. Paragraph 9(d)(vii) reads as under:
"(vii) No any 5% burnt memory micro controllers
Assembly constituency or Assembly segment of
Parliamentary constituency is been maintained."
27. The allegation appears to be founded on the direction of the
Hon'ble Apex Court in Association for Democratic Reforms vs.
Election Commission of India16 that the burnt memory /micro
16 2024 SCC OnLine SC 661.
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controller in 5% of EVM's that is the control unit, ballot unit and VVPAT
should be checked and verified by team of engineers from the
manufacturers of the EVMs post announcement of the results for any
tampering or modification, on a written request made by a candidate
who are at serial number 2 or 3 behind the highest polled candidate.
28. The pleading is that 5% burnt memory micro controllers is not
maintained whereas the direction of Hon'ble Apex Court is that upon
written request of candidate at serial no 2 and 3 behind the highest
polled candidate the burnt memory/micro controller in 5% of EVMS
shall be checked and verified. The decision does not direct that 5%
burnt memory micro controllers should be maintained. The allegation
is premised on incorrect reading of the decision of the Hon'ble Apex
Court and an illusory cause of action is shown. That apart, there is no
pleading that any such written request was made by the Election
Petitioner. Perusal of letter dated 26 th November, 2024 addressed by
the Election Petitioner to the District Election Officer and the
Returning Officer did not contain any request for such checking and
verification and the request was only for recounting of VVPAT slips.
The allegations contained in the said communication have been bodily
lifted and incorporated in the Election Petition without any care being
taken to ensure that the allegations discloses cause of action in
accordance with the requirement of R.P. Act.
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29. In case of Samant N. Balkrishna vs. George Fernandez17, the
Hon'ble Apex Court outlined the fine distinction between material
facts and particulars as under:
"What is the difference between material facts and
particulars? The word "material" shows that the facts
necessary to formulated 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 the material facts and
particulars but the two are quite distinct. ......The entire
and complete cause of action must be in the petition in
the shape of material facts, the particulars being the
further information to complete the picture."
30. The importance of setting out the material fact to constitute a
complete cause of action was summed up by the Hon'ble Apex Court in
Kanimozhi Karunanidhi v. A. Santhana Kumar (supra) in Paragraph
No.28 as under:-
"28. The legal position enunciated in afore-stated cases
may be summed up as under:-
i. Section 83(1)(a) of RP Act, 1951 mandates that an
Election petition shall contain a concise statement of
material facts on which the petitioner relies. If material
facts are not stated in an Election 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.
ii. The material facts must be such facts as would afford a
basis for the allegations made in the petition and would
17 1969 3 SCC 238
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constitute the cause of action, that is every fact which it
would be necessary for the plaintiff/petitioner to prove,
if traversed in order to support his right to the judgment
of court. Omission of a single material fact would lead to
an incomplete cause of action and the statement of
plaint would become bad.
iii. Material facts mean the entire bundle of facts which
would constitute a complete cause of action. Material
facts would include positive statement of facts as also
positive averment of a negative fact, if necessary.
iv. In order to get an election declared as void under
Section 100(1)(d)(iv) of the RP Act, the Election
petitioner must aver that on account of non-compliance
with the provisions of the Constitution or of the Act or
any rules or orders made under the Act, the result of the
election, in so far as it concerned the returned candidate,
was materially affected.
v. 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 it as a handle for vexatious purpose.
vi. An Election petition can be summarily dismissed on
the omission of a single material fact leading to an
incomplete cause of action, or omission to contain a
concise statement of material facts on which the
petitioner relies for establishing a cause of action, in
exercise of the powers under Clause (a) of Rule 11 of
Order VII CPC read with the mandatory requirements
enjoined by Section 83 of the RP Act."
31. The case of the Petitioner is that there is improper reception of
votes or reception of void votes. The pleadings when considered
holistically, even if accepted, does not disclose any cause of action as
to the improper reception of votes or void votes. Unless and until it is
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pleaded that the alleged discrepancies have resulted in improper
reception of votes, the assertion of mere discrepancy in the EVM or
Form 17 C by itself is insufficient to disclose any cause of action for the
purpose of Section 100(1)(d)(iii) of R.P. Act.
32. Apart from the fact that the pleadings in paragraph 9 which
constitutes the substratum of the Petitioner's case are vague, bereft of
material facts and does not demonstrate cause of action, the
requirement under Section 100(1)(d) of R.P. Act is that the results of
the election must be shown to have been materially affected in so far
as the returned candidate is concerned. As the allegation is about
improper reception of votes, the Election Petitioner is required to
plead about the manner in which the discrepancy in the vote count as
per the EVM and VVPAT have resulted in increased votes to the
returned candidate. The only pleading which can be found is in
paragraph 12 which is one long sentence reads as under:
"12. The Petitioner by his letter dated 26.11.2024 has
requested the authority i.e. District Election Officer and
Returning Officer following the same ratio in order to
strengthen the integrity of the election process that the
respondent no. 3 to 5 be directed to count the VVPAT
slips for validation be acceded by the concerned
esteemed authorities, as 100% Cross Verification of all
EVM data with Voter Verifiable Paper Audit Trail (VVPAT)
records should match and there should be counting of all
VVPAT paper slips manually as per mandate of law in
respect of 17 EVMs data with Voter Verifiable Paper Audit
Trail (VVPAT) be done and there should be counting of all
concern VVPAT paper slips be counted manually, which
request of the Petitioner could not be considered and no
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response was given by the authority and as such the
entire Scheme of the Election was vitiated due to
materialistic defect in the EVM sets as above mentioned
and as such recounting in the aforesaid matter was
necessitated therefore the aforesaid materially affected
the result of election of 1st respondent/returned
candidate and the result of election was affected
prejudicially in fact the petitioner or such other candidate
received a majority of the valid votes."
33. For seeking a declaration under Section 101, the Petitioner must
plead that Petitioner had received the majority of votes, which
pleading is absent. The challenge to the Election Petition can be traced
to Section 100(1)(d)(iii) whereby reason of improper reception of vote
or a void vote, the result of the election in so far as it concerns the
returned candidate has been materially affected. The requirement was
thus to plead material facts as to the discrepancy in the vote count in
Control Unit and the VVPAT slips and to further plead and show that by
reason of the said discrepancy, the results of the election has been
materially affected in so far as the returned candidate is concerned. It
is not sufficient to do mere lip service to the provisions of Section
100(1)(d) and would require at least an assertion of fact that by reason
of improper reception of votes, the returned candidate has been
declared elected.
34. Coming to the citations relied upon by Mr. Pandey, in the
decision of Member Gogoi vs. Renupama Rajkhowa (supra), the
Gauhati High Court while considering the Election Petition which was
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founded on allegations of anomalies in counting of polled ballots held
that the allegation does not constitute commission of any corrupt
practice. In the facts of that case, the Court found the statements are
not devoid of material facts. There is no quarrel with the proposition
that in the case of allegation of discrepancy in votes, the election is not
questioned on the ground of corrupt practice. Pertinently, the
submission of Mr. Shah on the aspect of corrupt practice was premised
on Section 101(b) of RP Act.
35. Insofar as the decision of Hon'ble Apex Court in the case of
Thangjam Arunkumar vs. Yumkham Erabot Singh (supra) is concerned,
the application was filed under Order VII, Rule 11 of CPC, 1908 for non-
compliance of Section 83(1)(c) of RP Act pertaining to the verification
of pleadings. It has already been held by this Court that the violations
under Section 83 are curable defect.
36. In the decision in the case of Gurudev Singh vs. Harvinder Singh
(supra), the Hon'ble Apex Court dismissed the Special Leave Petition in
limine. The relevancy of the said order dismissing the said SLP in limine
is doubtful.
37. In the case of Ashraf Kokkur vs. K. V. Abdul Khader (supra),
well-settled principles were reiterated that if the pleadings taken as a
whole clearly show that the constituted material facts disclose a cause
of action. There is no quarrel with the said proposition. The Hon'ble
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Apex Court reiterated the distinction between the material facts and
material particulars and that if claim discloses some cause of action,
the mere fact that the case is weak is no ground for striking it off. In
the present case, as this Court has held that the Election Petition is
bereft of material facts, the said decision does not assist the case of
the Petitioner.
38. In the decision of Patel Dipakbhai Chimanbhai vs. Chavda
Ishwarbhai Kohdabhai (supra), the order is of dismissal of Special
Leave Petition in limine.
39. In the case of Ashwani Kumar Sharma vs. Yaduvansh Singh
(supra), the Hon'ble Apex Court in the facts of that case found that the
Election Petition contained sufficient material facts regarding the
alleged irregularities in vote counting. The decision of Hon'ble Apex
Court was based upon the pleadings in the Election Petition contained
therein and in view of the material facts pleaded in the Petition and
thus held that the Petition discloses the cause of action. The decision
was rendered in the facts of that case and does not assist the case of
the Petitioner.
40. The decision in the case of Tarun Prasad Chatterjee vs.
Dinanath Sharma (supra) is in the context of limitation. The Hon'ble
Apex Court has held that the first day has to be excluded while
computing period of limitation. There is no quarrel with the said
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proposition.
41. The importance of precise and specific pleadings in an Election
Petition cannot be undermined. It is well settled that right to be
elected and right to dispute an election are statutory rights and are
subject to strict compliance of the statutory provisions.
42. Upon a careful and meaningful reading of the Petition, if the
question is asked as to whether the Election Petitioner could have
secured a favourable verdict, if there is no opposition, the answer
would be in the negative. This is the test to be applied while
adjudicating an application under Order VII Rule 11(a) of CPC.
Considering that in the Election Petition, the pleadings have to be
specific, precise and unambiguous as provided by Section 83 of the R. P.
Act, where the Election Petition even upon holistic reading does not
disclose cause of action, the same is liable to be dismissed.
43. In light of the above discussion, the Petition fails to disclose any
cause of action and is thus, liable to be rejected under Order VII, Rule
11 of CPC and is accordingly, rejected.
44. Interim Application is allowed. Resultantly, Election Petition
stands dismissed under Order VII, Rule 11(a) of CPC.
[Sharmila U. Deshmukh, J.]
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