Sri Shashikumar S Patil vs Election Commission Of India
2024 Latest Caselaw 24971 Kant

Karnataka High Court

Sri Shashikumar S Patil vs Election Commission Of India on 21 October, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

                             1




          IN THE HIGH COURT OF KARNATAKA AT
                   KALABURAGI BENCH

        DATED THIS THE 21ST DAY OF OCTOBER, 2024

                          BEFORE

THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

          ELECTION PETITION No.200001/2023


BETWEEN :

SRI SHASHIKUMAR S PATIL
S/O SHAM RAO
AGED ABOUT 49 YEARS
No.153, CHAVALI
CHOULI BIDAR KARNATAKA - 585 402.

                                           ... PETITIONER

(BY SRI VISHAAL V SHRIYAN, ADVOCATE)

AND :

1.      ELECTION COMMISSION OF INDIA
        NIRVACHANA SADAN, ASHOKA ROAD
        NEW DELHI - 110 001.
        (REPRESENTED BY ITS SECRETARY).

2.      CHIEF ELECTORAL OFFICER
        KARNATAKA ASSEMBLY ELECTION 2023
        NIRVACHANA NILAYA,
        MAHARANI COLLEGE CIRCLE
        SESADHRI ROAD
        BANGALORE - 560 001.
                             2




3.   RETURNING OFFICER
     BIDAR NORTH ASSEMBLY CONSTITUENCY-50
     ASSISTANT COMMISSIONER OFFICE
     BIDAR - 585 401.

4.   RAHIM KHAN
     S/O LATE MOHAMOOD KHAN
     AGED ABOUT 57 YEARS
     R/ AT H.No.9-5-162
     VIVEKANAND NAGAR, CHIDRI ROAD
     BIDAR - 585 401.

                                            ... RESPONDENTS


(BY SRI D P AMBEKAR, ADVOCATE FOR R1-R3
 SRI ROHAN HOSMATH, ADVOCATE FOR R4)

                            ---

THIS ELECTION PETITION IS FILED UNDER SECTION 81 OF REPRESENTATION OF PEOPLE ACT 1951, PRAYING TO SET ASIDE THE ELECTION OF THE 4TH RESPONDENT TO BIDAR NORTH ASSEMBLY CONSTITUENCY-50 AND PASS SUCH OTHER ORDERS / GRANT SUCH OTHER RELEIFS AS THIS HONOURABLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCE OF THE CASE INTEREST OF JUSTICE AND EQUITY AND ETC.,

THIS ELECTION PETITION IS BEEN HEARD AND RESERVED ON 21.09.2024 COMING ON FOR 'PRONOUNCEMENT' OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

CAV ORDER

1. This petition is filed under Section 81 of the

Representation of People Act, 1951 (for short R.P.Act,

1951) seeking the following prayers;

a) To call for records.

b) Set aside the election of the 4th respondent to Bidar North Assembly constituency - 50.Vide Form No.20 Final Result sheet produced as Annexure-J.

c) Pass such other orders / grant such other reliefs as this Hon'ble Court deems fit in the facts and circumstances of the case, interest of justice and equity.

2. I.A.No.3/2024 is filed by counsel for respondent No.4

under Order VI Rule 16 of Code of Civil Procedure, 1908

(for short 'CPC') r/w Section 87 of the R.P.Act, 1951

praying to strike out the pleadings in Paragraph Nos.5 to 7,

8, 10 and 11, since they are unnecessary, scandalous,

frivolous and vexatious; otherwise tend to prejudice or

delay the fair trial of the election petition. I.A.No.4/2024 is

filed under Order VII Rule 11(a) of CPC r/w Section 87 of

the R.P.Act, 1951 praying to reject the election petition

since it does not disclose any cause of action. Both the

applications are supported by the affidavit of respondent

No.4. In the said affidavit, it is stated that;

(i) The entire pleadings set out in the election petition

are liable to be struck off as they are unnecessary, frivolous

and vexatious; otherwise tend to prejudice or delay the fair

trial of the election petition. The necessary material facts

and material particulars required under Section 83 of the

R.P.Act, 1951 are conspicuously absent.

(ii) The averments in Paragraph Nos.5 to 7 relate to

the alleged improper acceptance of nomination of

respondent No.4 filed along with Form No.26 affidavit. The

gist of the allegation is that the Returning Officer did not

invalidate the nomination paper and Form No.26 affidavit of

respondent No.4 despite the petitioner's objection that each

page of Form No.26 affidavit filed in terms of Rule 4-A of

the Conduct of Election Rules, 1961 is not signed and

attested by the Notary public. Respondent No.4 has signed

each page of the affidavit in Form No.26 and the same was

sworn to before the Notary public; who has affixed his seal

to that effect. The allegation that the petitioner pointed out

"infirmities" and "errors" in the certifying part of the

affidavit to the Returning Officer vide Annexure-C to the

election petition is liable to be struck off since the petitioner

has not pleaded or pointed out any defect of substantial

character rendering the averments vague, cryptic and bald.

(iii) The averments in Paragraph No.8 regarding the

F.I.R registered against respondent No.4 by invoking the

provision of Sections 123(3), 125 and 127 of the R.P.Act,

1951 is liable to be struck off since the petitioner has failed

to plead or aver a concise statement of material fact

regarding the date, time, place and persons involved in

commission of the alleged corrupt practice, being contrary

to Section 83(1)(a) of the R.P.Act, 1951. The allegations in

the complaint and the F.I.R registered in Crime No.29/2023

even if it is taken to be true; would not attract the

ingredients of any corrupt practice; and is therefore liable

to be struck off as bald and vexatious. This Court by order

dated 02.02.2024 in Crl.P.No.8031/2024 has quashed the

proceedings pending on the file of the Principal Senior Civil

Judge, Bidar and remitted the matter for re-consideration.

(iv) The averment in Paragraph No.10 regarding the

alleged corrupt practices committed by respondent No.4 on

02.05.2023 is liable to be struck off as vexatious, frivolous

and bald since the petitioner has failed to plead or aver a

concise statement of material facts and particulars

regarding date, time, place and persons involved in

commission of the alleged corrupt practice; being contrary

to Section 83(1)(a) of the R.P.Act, 1951.

(v) The allegation in Paragraph No.11 that the result

of election is materially affected by undue influence of

voters; who have allegedly cast votes in favour of

respondent No.4 is also liable to be struck off as frivolous,

vexatious and bald since the petitioner has failed to plead

or aver the concise statement of material facts and

particulars regarding date, time, place and persons involved

in commission of the alleged corrupt practice.

(vi) The entire allegation contained in the election

petition do not meet the statutory requirement under the

provisions of the R.P.Act, 1951 and thus, liable to be struck

off as frivolous, vexatious and unnecessary.

(vii) The averments in the petition does not disclose

the cause of action for presentation of election petition

under Section 86 of the R.P.Act, 1951. While challenging

the election under Section 80 of the R.P.Act, 1951, the

petitioner must plead concise statements of material facts

on which he relies and set forth full particulars of any

corrupt practices and date and place of commission of such

practices in accordance with Section 83 of the R.P.Act,

1951.

3. The petitioner has filed the statement of objections to

both I.A.Nos.3 and 4 of 2024, wherein it is contended that;

(i) The pleadings of the election petition reveals

material particulars as required under the provisions

contemplated under the R.P.Act, 1951. The Returning

Officer ought to have invalidated the nomination papers

filed by respondent No.4 based on the objections filed by

the petitioner since the said affidavit filed by respondent

No.4 is not in accordance with law. The Notary had not

appended his signature on each and every page of the

affidavit except the last page. The fact that the objections

filed by the petitioner were not considered by the Returning

Officer is one of the subject matter of the election petition.

(ii) The corrupt practices of respondent No.4 has been

specifically pleaded in Paragraph Nos.8 to 11 which details

out the grounds for setting aside the election of respondent

No.4. Respondent No.4 has committed the offences

punishable under sections 123, 125 and 127 of the R.P.Act,

1951 which include both cognizable and non-cognizable

offences. The Co-ordinate Bench of this Court had partially

allowed the criminal petition filed by respondent No.4 in

Crl.P.No.8031/2024 on a technical ground by directing the

jurisdictional police to place the file at the hands of the

jurisdictional Magistrate. The entire F.I.R is not quashed as

contended by respondent No.4. There is incriminating

video graphic evidence against respondent No.4 for

promoting enmity between the classes which is the subject

matter of trial. The election petition contains all material

facts disclosing cause of action and material particulars

warranting for trial for respondent No.4 for having

committed the corrupt practice of undue influence and for

promoting enmity between the classes in terms of Sections

123, 125 and 127 of the R.P.Act, 1951. The election

petition disclose the valid cause of action and complied with

the requirement of Section 86 of the R.P.Act, 1951. With

these objections, counsel for the petitioner has prayed to

dismiss both I.A.Nos.3 and 4 of 2024.

4. Heard learned counsel for respondent No.4 and

learned counsel for the petitioner on I.A.Nos.3 and 4 of

2024.

5. These applications are filed contending that the

averments in the petition are cryptic, bald and vague

and does not constitute the ground for declaring the

election of returning candidate as void. Learned counsel for

respondent No.4 would contend that the concise statement

of material facts as required are absent in the petition.

6. The Hon'ble Apex Court in the case of Samant N

Balkrishna And Another vs. George Fernandez and

Others. reported in 1969 (3) SCC 238 has observed thus;

29. Having dealt with the substantive law on the subject of election petitions we may now turn to

the procedural provisions in the Representation of the Peoples Act. Here we have to consider Sections 81, 83 and 84 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub- section (1) of Section 100 and Section 101. That as we have shown above creates the substantive right. Section 83 then provides that the election- petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.

The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficiency of the words "material facts" will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be co- related to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of

action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. x x x x x x ."

7. The Hon'ble Apex Court in the case of Anil Vasudev

Salgaonkar vs. Naresh Kushali Shigaonkar reported in

2009 (9) SCC 310 has observed thus;

49. In this view of the matter, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) of the Code. These provisions are set out as under:

"16. Striking out pleadings.- The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the court.

* * *

11. Rejection of plaint.- The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;"

50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.

51. This Court in Samant N. Balkrishna case has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. In Udhav Singh v. Madhav Rao Scindia the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the

ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.

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

8. The Hon'ble Apex Court in the case of Kanimozhi

Karunanidhi vs. A Santhana Kumar and Others

reported in 2023 SCC Online 573 has observed thus;

28. The legal position enunciated in aforestated 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 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 VI CPC read with the mandatory requirements enjoined by Section 83 of the RP Act."

9. The Hon'ble Apex Court in the case of Ram Sewak

Yadav vs. Hussain Kamil Kidwai and Others reported in

AIR 1964 SC pg 1249 has observed thus;

"10. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate Rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers."

10. There is an allegation in the pleading that there is an

improper acceptance of nomination of respondent No.4 as

his affidavit does not contain the signature of the Notary on

each page of the affidavit. On perusal of the affidavit of

respondent No.4, respondent No.4 has affixed his signature

on all the pages of the affidavit. There is a seal of the

Notary on each page of the affidavit and the affidavit has

been sworn to before the Notary and for that, there is a

signature and seal of the Notary on the last page of the

affidavit. No doubt, the Notary has not affixed his signature

on each page of the affidavit, but stamp of the Notary is

contained in each page of the affidavit. The said affidavit

should be in Form 26 as required under Rule 4A of the

Conduct of Election Rules, 1961. Under the notes below the

Form 26 at Sl.No.5, it is stated that each page of the

affidavit should be signed by the deponent and the affidavit

should bear on each page, the stamp of the Notary or Oath

Commissioner or the Magistrate before whom the affidavit

is sworn.

11. Considering the said aspect, the signature of the

Notary on each page of the affidavit is not mandatory.

Each page of the affidavit contains stamp of the Notary.

The Returning Officer shall not reject any nomination paper

on the ground of any defect which is not of a substantial

character. The said alleged defect is not of substantial

character so as to reject the nomination paper as per Sub

Section (4) of Section 36 of the Conduct of Elections Rules,

1961. In view of the above, the Returning Officer might

not have considered the objections filed by the petitioner

which is at Annexure-C.

12. In Paragraph Nos.8, 10 and 11, it is contended that

respondent No.4 has indulged in corrupt practices of

promoting enmity between the classes and the same can be

seen in the complaint registered in F.I.R vide Annexure-E.

The said Annexure-E is the F.I.R of Bidar Town Police

Station in Crime No.29/2023 registered for the offences

under Sections 123(3-A), 125 and 127 of the R.P.Act, 1951

against respondent No.4. Learned counsel for respondent

No.4 contended that what is the offence and what is the

corrupt practice has not been stated in Paragraph Nos.8, 10

and 11.

13. Learned counsel for the petitioner would contend that

the F.I.R itself is enclosed as Annexure-E and the same has

to be read with the petition and the documents enclosed to

the petition to be looked into while considering the

application filed under Order VII Rule 11 of CPC., and on

that point he has placed reliance on the decision of the

Hon'ble Apex Court in the case of G.Nagaraj and Another

Vs. B.P.Mruthunjayanna an Others reported in 2023

SCC Online SC 1270 and in the case of Keshav Sood Vs.

Kirti Pradeep Sood and Ors. reported in Civil Appeal

No.5841/2023. Considering the said decisions, the

documents produced along with the petition has to be

looked into while considering the application filed under

Order VII Rule 11 of CPC.

14. Learned counsel for the petitioner would contend that

as per Sub Section (1)(a) of Section 83 of the R.P.Act,

1951, the election petition should contain the concise

statement of material facts. He further submits that as per

Order VI Rule 2 of CPC., pleadings should state the material

facts and not the evidence. On that point, he placed

reliance on the decision in the case of Sopan Sukhdeo

Sable and Ors. Vs. Assistant Charity Commissioner

and Ors. reported in (2004) 3 SCC pg 137 and in the

case of Shri Udhav Singh Vs. Madhav Rao Scindia

reported in (1977)1 SCC 511.

15. The F.I.R (Annexure-E) is registered against

respondent No.4 for the offences under Sections 123(3-A),

125 and 127 of the R.P.Act, 1951. The offences under

Sections 125, 127 of the R.P.Act, 1951 are electoral

offences and they are nothing to do with the election

petition. The said electoral offences are contained in

Chapter-III of the R.P.Act, 1951. The grounds for declaring

the election petition to be void are contained in Section 100

of the R.P.Act, 1951 and the electoral offences contained in

Chapter-III are not the grounds for declaring the election as

void. The election can be declared to be void on the ground

that result of election of the returning candidate has been

materially affected by any corrupt practices committed in

the interest of the retuning candidate. The corrupt practices

are enumerated in Section 123 of the R.P.Act, 1951. One

of the corrupt practice alleged against respondent No.4 as

per F.I.R vide Annexure-E is Sub Section (3-A) of Section

123 of the R.P.Act, 1951. The said F.I.R is registered on

the allegation that respondent No.4 on 02.05.2023 in the

election campaign has told that "out of six seats, only one

seat is for the minority and the same is confiscated by all

the other people". The term minority is extremely broad

term. The term minority cannot be said to be an appeal to

vote / avoid from voting based on religion. The appeal to

vote / avoid from voting must be based on religion. Sub

Section (3-A) of Section 123 of the R.P.Act, 1951 reads

thus;

"(3-A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of 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.

16. The words used by respondent No.4 in the election

campaign does not attract the ingredients of corrupt

practice as contained in Sub Section (3-A) of Section 123 of

the R.P.Act, 1951. Considering the above aspects, the

averments in the election petition do not disclose the cause

of action.

17. In view of the above, the applications I.A.Nos.3 and 4

of 2024 filed by respondent No.4 deserves to allowed.

Accordingly, they are allowed. Consequently, the petition

is rejected as it does not disclose the cause of action.

In view of disposal of the petition, all pending

applications stands disposed of.

Sd/-

(SHIVASHANKAR AMARANNAVAR) JUDGE GH