Bedanti Tiwari Vs Bhaiyalal Rajwade and others

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 01 of 2014 of 2015, Judgment Date: Mar 10, 2015

HIGH COURT OF CHHATTISGARH
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Single Bench: Hon’ble Shri Justice Sanjay K. Agrawal
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Election Petition No. 01 of 2014
PETITIONER : Bedanti Tiwari
Versus
RESPONDENTS : Bhaiyalal Rajwade and others
ELECTION PETITION UNDER SECTION 80/80-A READ WITH
SECTION 100 & 101 OF THE REPRESENTATION OF THE
PEOPLE ACT, 1951.
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Appearances:
Shri Kanak Tiwari, Senior Advocate with Shri Varun
Sharma, counsel for the petitioner.
Shri B. P. Sharma and Shri Vivek Chopra, counsel for
respondent No. 1.
None for respondents No. 3 to 6, though served.
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O R D E R
(Passed on 10.03.2015)
(1) This order shall govern the disposal of I. A. No. 2,
application under Order 7 Rule 14 (sic 11) of the Code of Civil
Procedure, 1908 (hereinafter referred to as‘ CPC’) raising
preliminary objection that Election Petition filed by the
petitioner does not disclose triable and reasonable cause of
action for the grounds stated in the election petition and
therefore, it is liable to be dismissed summarily invoking
jurisdiction under Order 7 Rule 11 of the CPC.
1
(2) Election petitioner has filed this Election petition under
Section 80A read with Section 100 and 101 of the
Representation of the People Act, 1951 (hereinafter referred
to as “the RP Act, 1951”) for declaring the election of
respondent No.1, from 3 Bainkunthpur Legislative
Constituency as illegal and void under Section 98(b) of the
RP Act, 1951 mainly on the following grounds:-
Firstly : That the nomination of returned candidate
was improperly accepted by the Returning Officer,
materially affecting the result of returned candidate
which is ground under Section 100(1)(d)(i) of the RP
Act, 1951 to declare the election void.
Secondly: The failure of the respondent No.1/returned
candidate to disclose the governmental liability of
Rs.45,120/- towards electricity dues of CSPDCL would
interfere with the freedom of choice of the voter and it
will fall under the category of “undue influence” within
the meaning of Section 123(2) of the Act, 1951and the
failure to disclose full and complete information is an
undue influence on the voters and it is a “corrupt
practice” rendering the election liable to be set aside,
2
which is a ground under Section 100 (1)(b) of the RP
Act, 1951 to declare the election void.
(3) Upon service of summons of the election petition,
respondent No.1/returned candidate without filing written
statement straightway filed application under Order 7 Rule
14(sic 11) of the CPC stating inter alia that election petition as
framed and filed is not maintainable in law as the nonpayment
of the electricity dues is not a material lapse leading
to rejection of nomination paper; and further pleaded that the
election petitioner has failed to plead that the alleged
improper acceptance of the nomination paper, the result of
the respondent No.1/returned candidate has been materially
affected as required under Section 100 (1)(d)(i) of the RP Act,
1951; secondly that the non-disclosure of the liability towards
electricity dues would not amount to undue influence by no
stretch of imagination and, as such, it would not be corrupt
practice within the meaning of Section 123(2) of the RP Act,
1951. He would also submit that affidavit filed in support of
corrupt practice is also not in accordance with the prescribed
proforma laid down by Rule 94-A of the Conduct of Election
Rules, 1961 and, as such, the election petition is liable to be
dismissed for want of triable cause of action.
3
(4) Election petitioner has filed reply opposing to the said
application stating inter alia that technical objections taken by
the returned candidate/respondent No.1 on merits of the
case, without filing the written statement is not maintainable
in law as Section 86 of RP Act, 1951 doesn’t include Section
83 of RP Act, 1951 and as such the application is liable to be
rejected as not maintainable in law.
(5) Shri B.P. Sharma, learned counsel appearing for
respondent No.1/returned candidate while supporting his
application under Order 7 Rule 14(sic 11) of the CPC would
submit as under:-
(i) Failure to make disclosure of the alleged electricity
dues of CSPDCL will not be a material lapse requiring
rejection of nomination paper and, therefore, it cannot
be held that the nomination paper of the respondent
No.1/returned candidate was improperly accepted.
(ii) In order to establish the ground under Section 100
(1)(d)(i) of the RP Act, 1951, election petitioner is
required to plead that by improper acceptance of the
nomination paper, result of the election so far as it
relates to the returned candidate has been materially
affected but in the instant case, pleadings with regard to
result of the election, has materially affected is
4
completely missing and lacking in the election petition
filed by the petitioner and, therefore, in the instant
election petition, there is no concise statement of
material fact muchless the triable cause of action under
Section 83(1)(a) of the RP Act, 1951 calling for trial of
the election petition.
(iii) That, the election petitioner has not averred that
alleged non-disclosure of electricity dues of CSPDCL
has actually interfered with free exercise of the right to
the voters to vote according to their choice and
conscience and as such there is no material facts
pleaded with regard to undue influence within the
meaning of Section 123(2) of the RP Act , 1951,
therefore, it will not a corrupt practice within the
meaning of Section 123 of the RP Act, 1951 stated to be
a ground under Section 100(1)(b) of the RP Act, 1951,
and as such election petition cannot be put to trial for
want of complete cause of action as mandated under
Section 83(1)(b) of the Act, 1951.
(iv) That an affidavit as framed and filed is not in
consonance with the proviso to Section 83(1) of the Act
read with Rule 94-A of the Conduct of Election Rules,
1961 (hereinafter referred to as ‘the Rules’).
5
(6) Mr. Kanak Tiwari, learned Senior Counsel, while replying
and countering the submissions made by respondent
No.1/returned candidate on his application under Order 7
Rule 14 (sic 11) of the CPC, would submit as under:-
(i) An application filed under Order 7 Rule 11 CPC is
not maintainable in law as the election petition can be
dismissed by this Court under Section 86 of the RP Act,
1951 which does not comply with the provisions of
Sections 81 or Section 82 or Section 117 of the RP Act,
1951, as such order shall be deemed to be made under
sub-section(a) of Section 98 of the RP Act, 1951
amounting to dismissal of the election petition,
therefore, no other ground is available for summarily
dismissal of the election petition by this Court even
before summon to be served to respondent
No.1/returned candidate.
(ii) That, the nomination of respondent No.1/returned
candidate has improperly been accepted by returning
officer as the petitioner has failed to disclose the
electricity dues of CSPDCL, Government Company,
which he was required to disclose and gave a false
affidavit alongwith his nomination paper, which is a
6
ground under Section 100(1)(d)(i) of RP Act, 1951 to
declare the election void.
(iii) That second limb of Section 100 (1)(d)(i) that result
of the election in so far as it concerned a returned
candidate has been materially affected by the improper
acceptance of the nomination paper, this has to be
established by the evidence during the course of trial by
leading appropriate evidence.
(iv) That the election petition discloses reasonable and
triable cause of action by pleading material facts relating
to ground under Section 100(1)(b) of Act and affidavit
filed in support of election petition is in accordance with
Rule 94-A of Rules of 1961.
(7) After hearing learned counsel for the parties on the
application under Order 7 Rule 11 of the CPC following, three
questions would arise for determination.
(i) Whether election petition can dismissed summarily
under Seciton 86 of the RP Act, 1951, in exercise of
jurisdiction Order 7 Rule 11 of the Code of Civil
Procedure, 1908?
(ii) Whether averment in the election petition assuming
them to be true and correct disclose any cause of action
7
for setting aside the election of returned candidate/
respondent No.1 on the ground stated in Section 100(1)
(d)(i) of the RP Act, 1951?
(iii) Whether averment in the election petition assuming
them to be true and correct, disclose any cause of
action for setting aside the election of returned
candidate/ respondent No.1 on the ground stated in
Section 100(1)(b) of the RP Act, 1951?
Re-question No. 1
(8) It is a submission of learned Senior counsel for the
petitioner that application under Order 7 Rule 11of the CPC is
not maintainable in law as by virtue of Section 86 of the RP
Act,1951, that the election petition, which does not comply
with the provisions of Section 81 or Section 82 or Section 117
of the RP Act, 1951, shall be dismissed and the Election
Petition, which does not comply with Section 83 (1) (a) or (b)
of the RP Act, 1951 as the case may be, cannot be dismissed
in exercise of jurisdiction under Order 7 Rule 11 of the CPC
and therefore, the application is liable to be rejected without
going into the merits of the said application.
(9) Submission of learned counsel for the Election petitioner
ignores mandate of Section 87 of the RP Act, 1951 which
8
provides that Election Petition shall be tried by the High Court
as nearly as may be in accordance with the procedure
applicable under the CPC to the trial of the suits.
(10) The aforesaid question was specifically raised in the
matter of Azhar Hussain Vs. Rajeev Gandhi1, the following
question was formulated by the Supreme Court:-
“5.A. Since the Act does not provide for dismissal
of an election petition on the ground that material
particulars necessasary to be supplied in the
election pletiton as enjoined by Section 83 of the
Act are no incorporated in the election petition
inasmuch as Section 86 of the Act which provides
for summary dismissal of the petition does not
advert to Section 83 of the Act there is no power in
the Court trying election petitioners to dismiss the
petition even in exercise of powers under the
Code of Civil Procedure.”
(11) In paragraph 11 of judgment their Lordships answered
the question and held that election petition could be
dismissed summarily if it doesn’t disclose a cause of action
by observing as under:-
“11. In view of this pronouncement there is no
escape from the conclusion that an election
petitition can be summarily dismissed if it does not
furnish cause of action in exercise of the powers
under the Code of Civil Procdure. So also it
emerges from the aforesaid decision that
appropriate orders in exercise of powers under the
Code of Civil Procedure 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.”
1 1986 (Supp.) SCC 315
9
(12) Very recently, in the matter of G.M. Siddheshwar Vs.
Prassanna Kumar2, their Lordships of the Supreme Court
noticing, Azhar Hussain (supra) and considering the decision
rendered in Ponnala Lakshmaiah V. Kommuri Pratap
Reddy3, held that the election petition is required to be tried
as early as possible in accordance with the procedure
applicable under the CPC to the trial of the suits and an
election petition could be dismissed if it does not disclose a
triable cause of action and followed and relied upon Azhar
Hussain (supra).
(13) Bearing in mind the principles of law laid down in the
aforesaid judgments Azhar Hussain (supra) & G.M.
Siddheshwar (supra), the application filed by the returned
candidate for the summary dismissal of the election petition in
exercise of power under Order 7 Rule 11 CPC is held to be
maintainable and preliminary objection raised on behalf of
election petitioner to the maintainability of the said application
is hereby overruled.
Re-question No. 2
(14) The question that falls for consideration is whether the
pleadings made in the election petition contain material concise
fact calling for trial of this election petition and whether
2 (2013) 4 SCC 776
3 (2012) 7 SCC 788
10
the election petition discloses triable and complete cause of
action as provided in Section 83(1)(a) of the RP Act, 1951.
The pertinent decisions in this regard are as under:-
(15) In the matter of Anil Vasudev Salgaonkar v. Naresh
Kushali Shigaonkar4, that an election petition can be dismissed
summarily if it doesn’t furnish complete cause of action.
Their Lordships observed as under:-
“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.
61. The legal position has been crystallised by a series
of the judgments of this Court that all those facts
which are essential to clothe the election petitioner
with a complete cause of action are “material facts”
which must be pleaded, and the failure to place even
a single material fact amounts to disobedience of the
mandate of Section 83(1)(a) of the Act.”
(16) Recently, the principle of law laid down in Anil Vasudeo
Salgaonkar (supra) was reiterated in the matter of G.M. Siddheshwar
(supra) and it has been held by their Lordships of
the Supreme Court that in case of complete non-compliance
with the provisions of Section 83, election petition may be dismissed
at the threshold by observing as under:-
“52. The principles emereging from these decision are
that although non-compliance with the provisions of
4 (2009) 9 SCC 310
11
Section 83 of the Act is a curable defect, yet there
must be substantial compliance with the provisions
thereof. However, if there is total and complete noncompliance
with the provisions of Section 83 of the
Act, then the petition cannot be described as an election
petition and may be dismissed at the threshold.”
(17) Very recently, in the matter of Ashraf Kokkur v. K.V.
Abdul Khader and others5, their Lordships of the Supreme
Court pointed out distinction between the requirement of Section
83(1)(a) of the RP Act and Section 83(1)(b) of the RP Act
by stating as under:-
“12. The requirement under Section 83(1)(a) of the
RP Act in contradistinction to Section 83(1)(b) of the
RP Act is that the election petition need contain only a
concise statement of the material facts and not material
particulars. “Concise” according to Oxford Dictionary
means, “brief and comprehensive”. Concise Oxford
Dictionary has given the meaning to the expression
“concise” as “giving a lof of information clearly
and in few words”. As per Webster’s Comprehensive
Dictionary, International Edition, expression has been
defined as “expressing much in brief form.”
(18) In this election petition petitioner has raised the following
grounds under Section 100 (1)(d)(i) for invalidating the election
of the returned candidate by making averments in the
election petition by stating, inter alia, that the returned candidate
in a nomination filed on 30.10.2013 alongwith the affidavit
in the prescribed Form-26 did not disclose the governmental
liability of Rs. 45,120/- to the Chhattisgarh State
Power Distribution Company Limited as a outstanding dues
5 (2015) 1 SCC 129
12
towards the electricity bill of his personal house and made a
false statement in his affidavit dated 29.10.2013 filed along
with nomination paper having no dues towards the electricity
department and at the time of scrutiny accepted his liability
before the returning officer, thus the respondent No.1 by furnishing
false information of having no liability and accepted
his liability before the returning officer made his nomination liable
to be rejected at once and as such nomination of respondent
No.1/returned candidate was improperly accepted
and thereby the result of the election has materially affected
by such improper acceptance of nomination paper and which
is a ground under Section 100(1) (d) (i) of the Act of 1951 for
declaring the election of returned candidate as null and void.
(19) At this stage it would be profitable to notice Section
100(1)(d)(i) of the RP Act,1951 which provides 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) …………..
(b) …………..
(c) …………..
(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
The High Court shall declare the election of the returned
candidate to be void”
13
(20) Thus, under Section 100 (1)(d)(i) of the RP Act, 1951
the election of the returned candidate can be declared void
by this Court if it is pleaded and proved that the result of the
election in so far as it concerns returned candidate, has been
materially affected by improper acceptance of the nomination
paper.
(21) Before proceeding further, it would be appropriate to notice
the landmark judgment of the Supreme Court (Union of
India v. Association for Democratic Reforms and another6)
in which it has been held that it was incumbent upon
every candidate to give information about his assets and
other affairs, as every voter has a right to know about the details
of the candidate and such a requirement is also covered
by Article 19(1)(a) of the Constitution of India. The paragraph
46 of the judgment states as under:-
“46. To sum up the legal and constitutional position
which emerges from the aforesaid discussion, it can
be stated that:
1. The jurisdiction of the Election Commission is
wide enough to include all powers necessary for
smooth conduct of elections and the word “elections”
is used in a wide sense to include the entire
process of election which consists of several
stages and embraces many steps.
2. The limitation on plenary character of power is
when Parliament or State Legislature has made a
valid law relating to or in connection with elections,
the Commission is required to act in conformity
with the said provisions. In case where law is
6 (2002) 5 SCC 294
14
silent, Article 324 is a reservoir of power to act for
the avowed purpose of having free and fair election.
The Constitution has taken care of leaving
scope for exercise of residuary power by the Commission
in its own right as a creature of the Constitution
in the infinite variety of situations that may
emerge from time to time in a large democracy, as
every contingency could not be foreseen or anticipated
by the enacted laws or the rules. By issuing
necessary directions, the Commission can fill the
vacuum till there is legislation on the subject. In
Kanhiya Lal Omar case7 the Court construed the
expression “superintendence, direction and control”
in Article 324(1) and held that a direction may
mean an order issued to a particular individual or a
precept which many may have to follow and it may
be a specific or a general order and such phrase
should be construed liberally empowering the Election
Commission to issue such orders.
3. The word “elections” includes the entire
process of election which consists of several
stages and it embraces many steps, some of which
may have an important bearing on the process of
choosing a candidate. Fair election contemplates
disclosure by the candidate of his past including
the assets held by him so as to give a proper
choice to the candidate according to his thinking
and opinion. As stated earlier, in Common Cause
case8 the Court dealt with a contention that elections
in the country are fought with the help of
money power which is gathered from black sources
and once elected to power, it becomes easy to collect
tons of black money, which is used for retaining
power and for re-election. If on an affidavit a
candidate is required to disclose the assets held by
him at the time of election, the voter can decide
whether he could be re-elected even in case where
he has collected tons of money.
Presuming, as contended by the learned Senior
Counsel Mr Ashwani Kumar, that this condition may
not be much effective for breaking a vicious circle
which has polluted the basic democracy in the country
as the amount would be unaccounted. Maybe true,
still this would have its own effect as a step-in-aid and
voters may not elect law-breakers as law-makers and
some flowers of democracy may blossom.
7 (1985) 4 SCC 628
8 (1996) 2 SCC 752
15
4. To maintain the purity of elections and in particular
to bring transparency in the process of election,
the Commission can ask the candidates about
the expenditure incurred by the political parties and
this transparency in the process of election would
include transparency of a candidate who seeks
election or re-election. In a democracy, the electoral
process has a strategic role. The little man of
this country would have basic elementary right to
know full particulars of a candidate who is to represent
him in Parliament where laws to bind his liberty
and property may be enacted.
5. The right to get information in democracy is
recognised all throughout and it is a natural right
flowing from the concept of democracy. At this
stage, we would refer to Article 19(1) and (2) of the
International Covenant on Civil and Political Rights,
which is as under:
“(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of expression;
this right shall include freedom to seek,
receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any
other media of his choice.”
6. On cumulative reading of a plethora of decisions
of this Court as referred to, it is clear that if
the field meant for legislature and executive is left
unoccupied detrimental to the public interest, this
Court would have ample jurisdiction under Article
32 read with Articles 141 and 142 of the Constitution
to issue necessary directions to the executive
to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides
for freedom of speech and expression.
Voter’s speech or expression in case of election
would include casting of votes, that is to say, voter
speaks out or expresses by casting vote. For this
purpose, information about the candidate to be selected
is a must. Voter’s (little man — citizen’s)
right to know antecedents including criminal past of
his candidate contesting election for MP or MLA is
much more fundamental and basic for survival of
democracy. The little man may think over before
16
making his choice of electing law-breakers as lawmakers.”
(22) Thereafter Supreme Court issued directions for filing affidavit
to the election commission from each candidate seeking
election to parliament or state legislature as part of his
nomination paper furnishing therein information on the following
aspect in relation to his/her candidature.
“48.(1) Whether the candidate is convicted/
acquitted/discharged of any criminal offence in the
past — if any, whether he is punished with imprisonment
or fine.
(2) Prior to six months of filing of nomination, whether
the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or
more, and in which charge is framed or cognizance is
taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance,
etc.) of a candidate and of his/her spouse and that of
dependants.
(4) Liabilities, if any, particularly whether there are any
overdues of any public financial institution or government
dues.
(5) The educational qualifications of the candidate.”
(23) In compliance of above-stated judgment, Section 33-A of
RP Act was introduced by Act No. 72 of 2002 w.e.f.
24.08.2002 in RP Act, 1951 likewise Section 33-B was also
inserted by Act No. 72 of 2002 w.e.f. 02.05.2002 in the said
Act. Section 33-B was struck down by Supreme Court in
17
case of People’s Union for Civil Liberty and others v.
Union of India and others9.
(24) The revised guidelines were issued by Election Commission
of India on March 23, 2006 in supersession of earlier
guidelines dated June 28, 2002. Paragraph 1 and 3 of this
guidelines are relevant and hereby reproduced as under:-
“(1) Every candidate at the time of filing his nomination
paper or any election to the Council of State,
House of the People, Legislative Assembly of a State
or the Legislative Council of a State having such a
council, shall furnish full and complete information in
regard to the matters specified by the Hon’ble
Supreme Court and quoted in paras 13 and 14 above,
in an affidavit, the format whereof is annexed hereto
as Annexure-I to this order.
xx xx xx
(3) Non-furnishing of the affidavit by any candidate
shall be considered to be violation of the order of the
Hon’ble Supreme Court and the nomination of the
candidate concerned shall be liable to rejection by the
returning officer at the time of scrutiny of nomination
such non-furnishing of the affidavit.”
(25) In the matter of Resurgence India v. Election Commission
of India10, it has been held by their Lordships of the
Supreme Court that the voter has been elementary right to
know full particulars of the candidate, who is to represent him
in the parliament or the assembly and such a right is universally
recognized. Legal position is summarized in paragraph
27 as under:-
9 (2003) 4 SCC 999
10 AIR 2014 SC 344
18
“27. What emerges from the above discussion can be
summarized in the form of following directions:
(i) The voter has the elementary right to know full particulars
of a candidate who is to represent him in the
Parliament/Assemblies and such right to get information
is universally recognized. Thus, it is held that right
to know about the candidate is a natural right flowing
from the concept of democracy and is an integral part
of Article 19(1)(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with
the nomination paper is to effectuate the fundamental
right of the citizens under Article 19(1)(a) of the Constitution
of India. The citizens are supposed to have
the necessary information at the time of filing of nomination
paper and for that purpose, the Returning Officer
can very well compel a candidate to furnish the
relevant information.
(iii) Filing of affidavit with blank particulars will render
the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check
whether the information required is fully furnished at
the time of filing of affidavit with the nomination paper
since such information is very vital for giving effect to
the 'right to know' of the citizens. If a candidate fails to
fill the blanks even after the reminder by the Returning
Officer, the nomination paper is fit to be rejected. We
do comprehend that the power of Returning Officer to
reject the nomination paper must be exercised very
sparingly but the bar should not be laid so high that
the justice itself is prejudiced.
(v) We clarify to the extent that Para 73 of People's
Union for Civil Liberties case (supra) will not come in
the way of the Returning Officer to reject the nomination
paper when affidavit is filed with blank particulars.
(vi) The candidate must take the minimum effort to
explicitly remark as 'NIL' or 'Not Applicable' or 'Not
known' in the columns and not to leave the particulars
blank.
(vii) Filing of affidavit with blanks will be directly hit by
Section 125A(i) of the RP Act However, as the nomination
paper itself is rejected by the Returning Officer,
we find no reason why the candidate must be again
penalized for the same act by prosecuting him/her.”
19
(26) Keeping in view the aforesaid authorities in mind and
turning back to the pleading of the election petitioner with regard
to the improper acceptance of the nomination paper
which is pleaded in paragraph 12 as well as paragraph 17, 20
and 28 as under:-
“12. That from the above discussion it is clear that the
true and correct information regarding Assets & Liabilities
is mandated by the Hon’ble Supreme Court and it
cannot be taken lightly. A wrong information would
also lead to rejection of nomination if it can be verified
easily or admitted by the erring candidate.
The judgments of the Hon’ble Supreme Court in PUCL
(supra) and Resurgence (supra) impliedly deal with the
contingency of admission by the candidate to have
filed a false affidavit which situation is present in the instant
case. Thus, the nomination of the respondent No.
1 has been wrongly accepted and the result of the
election has been materially affected by such improper
acceptance of nomination as would be substantiated
further.
17.That in the above affidavit dated 29/10/2013 the respondent
No. 1 made a false statement in para 8 regarding
liabilities towards electrical department/ company.
The respondent No. 1 mentioned the word
“Zero” in the said column of the affidavit which statement
was totally false as on the said date the respondent
No. 1 was having a due/liability of Rs. 45,120.00
to the Chhattisgarh State Electricity Distribution Company
ltd. (for short CSPDCL) as the outstanding dues
towards the electricity bill of the personal house of the
Respondent No. 1 situated at Sardi, Bikunthpur. A
copy of the aforesaid electricity bill dated 03/10/2013
of the Respondent No. 1 is annexed as Annexure A/7.
It is specifically submitted that on the date of filing of
the affidavit along with nomination before the returning
officer i.e. on 30/10/2013 the respondent No. 1 was
having the outstanding dues of Rs. 45,120.00 to
CSPDCL which fact has been deliberately concealed,
suppressed and falsely stated in Para 8 of the Affidavit
20
by the Respondent No. 1. The above act of the Respondent
No. 1 would be an ‘electoral offence” as well
as a ‘corrupt practice’ as defined under Section 123 of
the R.P. Act.
20. That a wrong/false/incomplete information is actually
no information in the eye of law. To say, that a
candidate has fulfilled the requirement to file an affidavit/
declaration, even if such affidavit contains a false
or incomplete information, would militate against the
very object of the directions issued by the Supreme
Court in ADR (supra) and PUCL case (supra) and the
Notification issued by the Election Commission pursuant
thereto. The Respondent No. 1 by furnishing
false information of having no liability and accepting
his liability before the Returning Officer made his nomination
liable to be rejected at once.
28. That in the instant case the facts are undisputed
that on the date of filing of the nomination the respondent
No. 1 was having an admitted due of Rs.
45,120.00/- and the said information was falsely and
deliberately concealed. A false information was given
in the affidavit that there were no governmental dues.
Thus, the mandatory provisions of R.P. Act were
clearly violated and the nomination of the respondent
No. 1 was improperly accepted. The election of the respondent
No. 1 is liable to be set-aside on this
ground.”
(27) A plain and careful reading of the above extracted paragraphs
of the averment of the election petition would show
that it is a case of the election petitioner that the respondent
No.1/returned candidate was required to make disclosure of
his liability/due of Rs. 45,120/- to the Chhattisgarh State
Power Distribution Company Limited while submitting affidavit
in prescribed form No.26 alongwith his nomination paper submitted
on 30.10.2013, which he has not made and the re-
21
turned candidate/respondent No.1 not only suppressed the
material facts but also at the time of scrutiny accepted his liability
before the returning officer stating that he would clear
the electricity dues and as such his nomination paper has improperly
been accepted by the returning officer holding that
the objection raised by the election petitioner is not of the
substantive nature and thereby accepted the nomination paper
of the returned candidate, which is in violation of the imperative
guidelines/direction issued by the Election Commission
of India pursuant to the judgment of the Supreme Court,
thus the election of the returned candidate is liable to be declared
void under Section 100(1)(d)(i) of the RP Act, 1951.
(28) Mr. Sharma, learned counsel for returned candidate relying
upon the judgment of the Supreme Court in the matter of
Kishan Shankar Kathore Vs. Arun Dattatraya Sawant 11 ,
would submit that the non-payment of electricity bill to
CSPDCL is not a material lapse leading to rejection of his
nomination paper and, therefore, the returning officer is absolutely
justified in not rejecting the nomination paper of the respondent
No.1 for such a non-disclosure in the affidavit filed
along with nomination paper. Mr. Sharma has invited atten-
11 AIR 2014 SC 2069
22
tion of this Court to the opening part of paragraph 34 of the
report to buttress his submission which states as under:-
“insofar as non-disclousre of electricity dues is
concerned, in the given facts of the case we are of
the opinion that it may not be the serious
lapse…….”
(29) In the case before the Supreme Court it was held so, as
in that case though the electricity dues were outstanding but
at the same time there was bonafide dispute about the outstanding
dues in respect of electricity meter was pending before
the MSEB with respect to one meter and in respect to
second meter that was rented out to the tenant and dues
were payable by the tenants. Not only this, their Lordships
have specifically held that the fact whether non-disclosure
would amout to material lapse or not would depend in the
facts & circumstances of each case by holding as under in
the later part of said paragraph:-
“34…….Having said so, we may clarify that it
would depend in the facts and circumstances of
each case as to whether such a non-disclousre
would amount to material lapse or not. We are,
thus, clarifying that our aforesaid observation in
the facts of the present case should not be treated
as having general application.”
(30) Thus, keeping in view the binding observation of their
Lordships of the Supreme Court it cannot be held that nondisclosure
of the electricity dues is not a serious lapse as in
the instant case the petitioner has specifically pleaded that re-
23
turned candidate has not made disclosure of the electricity
dues of Rs. 45,120/- payable to the CSPDCL and sworn an
affidavit in prescribed proforma and filed the same along with
nomination paper showing the electricity dues to be Zero.
Thus, the submission raised in this behalf by returned candidate
deserves to be and is accordingly rejected.
(31) The next submission of Mr. Sharma, learned counsel for
the returned candidate is that the condition attached with
Section 100(1)(d)(i) of the RP Act that by improper acceptance
of the nomination paper the result of the election in so
for as returned candidate has been materially affected has
not been pleaded and therefore petition cannot put to trial,
placing reliance upon the decision of the Supreme Court in
the matter of Shambhu Prasad Sharma v. Charandas Mahant
and others12. Paragraph 20 of the report states as under:-
“20. Coming to the allegation that other candidates
had also not submitted affidavits in proper format, rendering
the acceptance of their nomination papers improper,
we need to point out that the appellant was required
to not only allege material facts relevant to
such improper acceptance, but further assert that the
election of the returned candidate had been materially
affected by such acceptance. There is no such assertion
in the election petition. Mere improper acceptance
assuming that any such improper acceptance was
supported by assertion of material facts by the appellant-
petitioner, would not disclose a cause of action to
call for trial of the election petition on merit unless the
12 (2012) 11 SCC 390
24
same is alleged to have materially affected the result
of the returned candidate.”
(32) Mr. Kanak Tiwari, learned Senior Counsel for election
petitioner replying the above-stated submission made by returned
candidate and placing reliance in case of Kisan
Shankar Kathore (supra), would submit that in the aforesaid
case the election of returned candidate was challenged under
Section 100(1)(d)(i) &(iv) of the RP Act, 1951 on the ground
that returned candidate had suppressed his dues payable to
government (MSEB) in respect of two service connection, the
Bombay High Court finding that the returned candidate had
failed to disclose dues to the MSEB declared the election of
returned candidate void and up-holding the said order it has
been held by their Lordships of the Supreme Court that once
it is found that it was a case of improper acceptance of the
nomination paper, the election of the returned candidate is
void, therefore though sufficient pleading has been made in
paragraph tweleve of the election petition with respect to
election, being materially affected yet in view of the decision
of the Supreme Court in case of Kisan Shankar Kathore
(supra), it cannot be held that the petition lacks necessary
pleading with regard to result of the election is materially affected
and the same is liable to be dismissed for want of nec-
25
essary pleading with respect to election of the returned candidate
being materially affected on account of improper acceptance
of the nomination paper.
(33) In the matter of Kisan Shankar Kathore (supra) the following
two questions were formulated by their Lordships in
paragraph 32 of the judgment:-
“32. In view of the aforesaid, two facets of the issue,
which require consideration, are as follows:
a) Whether there is a substantial compliance in disclosing
the requisite information in the affidavits filed
by the Appellant along with the nomination paper?
b) Whether non-disclosure of the information on account
of aforesaid four aspects has materially affected
the result of the election?”
(34) Answering the issue it has been held in paragraph 38 of
judgment as under:-
“38. When the information is given by a candidate in
the affidavit filed along with the nomination paper and
objections are raised thereto questioning the correctness
of the information or alleging that there is nondisclosure
of certain important information, it may not
be possible for the returning officer at that time to conduct
a detailed examination. Summary enquiry may
not suffice. Present case is itself an example which
loudly demonstrates this. At the same time, it would
not be possible for the Returning Officer to reject the
nomination for want of verification about the allegations
made by the objector. In such a case, when ultimately
it is proved that it was a case of non-disclosure
and either the affidavit was false or it did not contain
complete information leading to suppression, it can be
held at that stage that the nomination was improperly
accepted. Ms. Meenakshi Arora, learned senior Counsel
appearing for the Election Commission, right argued
that such an enquiry can be only at a later stage
and the appropriate stage would be in an election pe-
26
tition as in the instant case, when the election is challenged.
The grounds stated in Section 36(2) are those
which can be examined there and then and on that
basis the Returning Officer would be in a position to
reject the nomination. Likewise, where the blanks are
left in an affidavit, nomination can be rejected there
and then. In other cases where detailed enquiry is
needed, it would depend upon the outcome thereof, in
an election petition, as to whether the nomination was
properly accepted or it was a case of improper acceptance.
Once it is found that it was a case of improper
acceptance, as there was misinformation or suppression
of material information, one can state that question
of rejection in such a case was only deferred to a
later date. When the Court gives such a finding, which
would have resulted in rejection, the effect would be
same, namely, such a candidate was not entitled to
contest and the election is void. Otherwise, it would
be an anomalous situation that even when criminal
proceedings under Section 125A of the Act can be initiated
and the selected candidate is criminally prosecuted
and convicted, but the result of his election cannot
be questioned. This cannot be countenanced.”
(35) Thus in the said judgment it has clearly been held by the
Supreme Court that once it is found that it was a case of improper
acceptance of the nomination paper as there was misinformation
or suppression of material information, and the
court trying the election petition returns such a finding, the
election of the returned candidate would be void.
(36) Keeping in mind the principles of law laid down by their
Lordships of the Supreme Court in the above-stated case
Kisan Shankar Kathore (supra) it would clear that the election
petitioner has clearly made out a case in pleading that
the returned candidate was legally obliged to furnish informa-
27
tion in his affidavit in the prescribed form filed alongwith the
nomination paper, the governmental dues relating to electricity
dues of Rs. 45,120/- payable to the CSPDCL which he has
not made disclosure while filing affidavit along with his nomination
paper and same has been accepted by the returning
officer on the statement made by him that he would clear the
electricity dues. Therefore, the petitioner has averred concise
statement of material facts relating to ground under Section
100 (1)(d)(i) of the RP Act, 1951 to declare the election of respondent
No. 1 as void. Thus the submission of learned
counsel for the returned candidate, that the election petition
lack particulars in pleadings as required under Sectin 83(1)(a)
of the RP Act, 1951, sans merit and deserves to be rejected
and accordingly rejected, this question is answered accordingly.
Re-question No. 3
(37) The determination of the aforesaid question leads me to
the next question whether the election petition has set forth
full particulars of corrupt practice of undue influence with a full
statement as required under Section 83(1)(b) of the RP Act,
1951?
28
(38) It is a case of returned candidate highlighted in an application
under Order 7 Rule 11 CPC that alleged non-payment
of electricity dues to the CSPDCL in time and filing of the affidavit
with the nomination paper do not come within the
purview of undue influence of corrupt practice under Section
123(2) of the RP Act, 1951 and as such there is no material
facts pleaded within the meaning of Section 83(1)(b) of the
RP Act, 1951 calling for trial of this election petition on this
ground.
(39) However, it is a case of election petitioner that failure to
disclose a Governmental liability of Rs. 45,120/- would certainly
interfere with the freedom of choice of voter as he may
be carried out by the non-disclosure of false or incorrect information
and enquiry can be made by this Court in this petition
to see the nature of information suppressed or supplied, to
find out if it was capable of influencing the freedom of choice
of the voters. If the false, incorrect or incomplete information
was capable of influencing the freedom of choice of the voters,
then it will fall under the category of “undue influence”
within the meaning of Section 123(2) of the RP Act, 1951.
The failure to furnish “full and complete information” is an undue
influence on the voters and is a corrupt practice rendering
the election liable to be set aside.
29
(40) At this stage it would be profitable to notice provision
contained in Section 123(2) of the RP Act, 1951 that is undue
influence:-
“123. Corrupt practices : The following shall be
deemed to be corrupt practices for the purposes of
this Act:-
xx xx xx
(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 other person 7
[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
is 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;
(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.”
(41) From a meaningful reading of the above-extracted definition
would show that it is an essential ingredient of the corrupt
practice of “undue influence” under sub-section (2) of
30
Section 123 of RP Act, 1951, that there should be any “direct
or indirect interference or attempt to interfere” on the part of
candidate or his agent or of any other person with the consent
of the candidate or his agent “with the free exercise of
any electoral right”. Therefore, for the purpose of establishing
the corrupt practice of “undue influence” to allege and prove
that there was any direct or indirect interference or attempt to
interfere with the exercise of any electoral right.
(42) In the matter of Kashi Nath v. Kudsia Begum and others13,
their Lordships of the Supreme Court while considering
the definition of undue influence observed as under:-
“5. Now Section 123(2) defines “undue influence” as
meaning any direct or indirect interference or attempt
to interfere on the part of the candidate or his agent or
of any other person with the consent of the candidate
or his selection agent with the free exercise of any
electoral right. According to proviso a(i) any such person
referred to above who threatens any candidate or
any elector, inter alia, with injury of any kind shall be
deemed to interfere with the free exercise of the electoral
right of such candidate or elector………….”
(43) In Shiv Kirpal Singh v. Shri V.V. Giri14, their Lordships
of the Supreme Court has pertinently held as under:-
“Accordingly, the offence of undue influence can be
said to have been committed only if the voter is put
under a threat or fear of some adverse consequence,
or if he is induced to believe that he will become an
object of Divine displeasure or spiritual censure if he
casts or does not cast a vote in accordance with his
decision:
13 (1970) 3 SCC 554
14 (1970) 2 SCC 567
31
“… But, in cases where the only act done is for the
purpose of convincing the voter that a particular candidate
is not the proper candidate to whom the vote
should be given, that act cannot be held to be one
which interferes with the free exercise of the electoral
right.”
(44) The Constitution Bench of the Supreme Court in the
matter of Charan Lal Sahu v. Giani Jail Singh and another15,
while considering the “undue influence” as enumerated
in Section 18(1) of the Presidential and Vice-Presidential
Elections Act, 1952, emphasising the need of precise, specific
and unambiguous pleading of corrupt practice particularily
with reference to undue influence stated as under:-
“35. The gravamen of this section is that there must
be interference or attempted interference with the
“free exercise” of any electoral right. “Electoral right” is
defined by Section 171-A(b) to mean the right of a
person to stand, or not to stand as, or to withdraw
from being, a candidate or to vote or refrain from voting
at an election. In so far as is relevant for our purpose,
the election petition must show that Shri Beg interfered
with the free exercise of the voters’ right to
vote at the Presidential election. The petition does not
allege or show that Shri Beg interfered in any manner
with the free exercise of the right of the voters to vote
according to their choice or conscience………..”
In the later part, their Lordships further held:-
“Therefore, in order that the offence of undue influence
can be said to have been made out within the
meaning of Section 171-C of the Penal Code, something
more than the mere act of canvassing for a candidate
must be shown to have been done by the offender.
That something more may, for example, be in
the nature of a threat of an injury to a candidate or a
voter as stated in sub-section (2)(a) of Section 171-C
of the Penal Code or, it may consist of inducing a be-
15 (1984) 1 SCC 390
32
lief of Divine displeasure in the mind of a candidate or
a voter as stated in sub-section (2)(b). The act alleged
as constituting undue influence must be in the nature
of a pressure or tyranny on the mind of the candidate
or the voter. It is not possible to enumerate exhaustively
the diverse categories of acts which fall within
the definition of undue influence. It is enough for our
purpose to say, that of one thing there can be no
doubt: The mere act of canvassing for a candidate
cannot amount to undue influence within the meaning
of Section 171-C of the Penal Code.”
(45) Principles laid down in the matter of Charan Lal Sahu
(supra) has been followed by Constitution Bench in the matter
of Mithilesh Kumar v. R. Venkataraman and others16.
Thereafter, the Supreme Court in the matter of Lalit Kishore
Chaturvedi v. Jagdish Prasad Thada and others 17 while
dealing with the undue influence as stated in Section 123(2)
of the Act succintly held as under:-
“11. Although much was argued on Section 123(2)
but no specific pleading could be pointed out in this
regard. No details of undue influence or direct or indirect
interference by the appellant, or his agent, with
his consent with free exercise of electoral right was
raised. In fact guilt under Section 123(2) was attempted
to be made on same pleading, namely, paragraphs
3(i), (j). The ingredients of the two being different
they were to be pleaded specifically and the details
were to be furnished separately to give a clear
picture of cause of action. Undue influence is an inference
which arises on facts pleaded and proved. Mere
averment that appellant exercised undue influence in
absence of precise facts, namely, the nature of such
influence, the persons on whom it was exercised and
time and place of it the pleadings in paragraphs (i)
and (j) fell short of the requirement in law. Allegations
fishing and roving, as were pleaded in this case could
not be said to be sufficient compliance of Section
83(1)(b).”
16 1987 (Supp) SCC 692
17 1990 (Supp) SCC 248
33
(46) Very recently in the matter of Krishnamoorthy v.
Sivakumar & Ors18, their Lordships of the Supreme Court
has noticed and considered earlier judgments of the Supreme
Court on the point of undue influence and culled out the following
principles as under:-
“53. From the aforesaid authorities, the following principles
can be culled out:
(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.
(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 Indian Penal Code 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.
18 JT 2015(2) SC 273
34
(ix) There should never be tyranny over the mind
which would put fetters and scuttle the free exercise
of an electorate.
(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.”
(47) In order to examine the averments made in the election
petition whether it discloses any triable cause of action for
setting aside the election on the ground of corrupt practice of
undue influence, it would be proper to notice the averment
made in the election petition in this regard paragraphs 31(c)
and 32 of petition relates to undue influence is reproduced
here for sake of convenience, which states as under:-
“31. That the following propositions emerge out of the
statutory provisions as well as the law laid down by
the Apex Court:-
xx xx xx
(c) However, if a candidate furnishes incomplete, incorrect
or false information or fails to furnish full and
complete information, with regard to those five matters,
in his affidavit/declaration, it would be a ground
for the Election Judge to set aside the election under
Section 100(1) (b) of the RP Act, if the information so
furnished or withheld, would amount to “undue influence”
within the meaing of Section 123(2) of the Representation
of the People Act, 1951. Therefore this
Hon’ble Court can go into the question whether full
and complete information was furnished by the returned
candidate in his affidavit/declaration and
whether the information furnished/withheld is of such
a nature, as to interfere with the free exercise of the
electoral right, including the free choice of the candidate.
35
32. That an incorrect statement relating to the educational
qualification of the candidate may not swing the
choice of the voter either in his favour or away from
him. Similarly, the omission of a candidate to disclose
an acquittal or discharge in a criminal case, may not
also swing the votes. But the failure to disclose a
governmental liability of thousands of rupees (Rs.
45,120.00 in this case) would certainly interfere with
the freedom of choice of the voter, as he may be carried
away by such non disclosure or disclosure of
false or incorrect information. Therefore, it will be
open to the this Hon’ble Court to see the nature of the
information suppressed or supplied, to find out if it
was capable of influencing the freedom of choice of
the voters. If the false, incorrect or incomplete information
was capable of influencing the freedom of
choice of the voters, then it will fall under the category
of “undue influence” within the meaning of Section
123(2) of the Representation of the People Act, 1951.
The failure to furnish “full and complete information” is
an undue influence on the voters and is a corrupt
practice rendering the election liable to be set aside.”
(48) At this point it would be appropriate to notice the importance
of pleading in the election petition, highlighted by the
Constitution Bench of the Supreme Court in the matter of
Charan Lal Sahu (supra) with reference to corrupt practice of
undue influence which states as under:-
“30………..It is not open to a petitioner in an election
petition to plead in terms of synonyms. In these petitions,
pleadings have to be precise, specific and unambiguous
so as to put the rsepondent on notice. The
rule of pleadings that facts constituting the cause of
action must be specifically pleaded is as fundamental
as it is elementary……………
31. The importance of a specific pleading in these
matters can be appreciated only if it is realised that
the absence of a specific plea puts the respondent at
a greater disadvantage. He must know what case he
has to meet. He cannot be kept guessing whether the
petitioner means what he says, ‘connivance’ here, or
36
whether the petitioner has used that expression as
meaning ‘consent’. It is remarkable that, in their petition,
the petitioners have furnished no particulars of
the alleged consent, if what is meant by the use of the
word connivance is consent. They cannot be allowed
to keep their options open until the trial and adduce
such evidence of consent as seems convenient and
comes handy. That is the importance of precision in
pleadings, particularly in election petitions. Accordingly,
it is impermissible to substitute the word ‘consent’
for the word ‘connivance’ which occurs in the
pleadings of the petitioners.
33. Since, admittedly, there is no pleading in the election
petition that the offence of undue influence was
committed with the consent of the returned candidate,
the petition must be held to disclose no cause of action
for setting aside the election of the returned candidate
under Section 18(1)(a) of the Act.”
(49) A combined and conjoint reading of the above-extrated
averment of election petition relating to undue influence it
would show the election petitioner has averred and alleged
that failure to disclose a governmental liability of Rs. 45,120/-
would certainly interfere with the freedom of choice of voters
as he may be carried out by such non-disclosure or disclosure
of false or incorrect information. The election petitioner
has further alleged that it is for the court to find out upon enquiry
whether such non-disclosure of requisite information
was capable of influencing the freedom of choice of voters
and if upon the enquiry the court comes to the conclusion that
such non-disclosure of information was capable of influencing
the freedom of the choice of the voters, then it will fall under
the category of undue influence within the meaning of Section
37
123(2) of the RP Act, 1951. The election petitioner in his petition
doesn’t allege affirmatively that the non-disclosure of
such an information by the returned candidate has interefered
with the free exercise of the voters right to vote at the election
according to their choice. Likewise the petition doesn’t allege
that the such an non-disclosure of the requisite information by
the returned candidate was capable of influencing the freedom
of choice of voters to vote at the election and the petitioner
has left it open to be enquired into and to be decided
upon enquiry by the court.
(50) Applying the principles of law laid down by the Supreme
Court in above-mentioned judgments with regard to pleading
of corrupt practice of “undue influence”, it is quite vivid that
the election petitioner has utterly and miserably failed to
plead precise fact constituting corrupt practice of “undue influence”,
namely the nature of such inference, the persons on
whom it was exercised and time and place of it in the pleading
as no details of the undue influence or direct or indirect interference
by the returned candidate or his agent has been
raised in the petition and a mere allegation that non-disclosure
of the alleged information in a affidavit filed alongwith the
nomination cannot be said to fall within the mischief of subsection
(2) of Section 123 of the RP Act, 1951, that would not
38
by itself amount to interference or attempt at intereference
with the free exercise of an electoral right, as undue influence
is an inference and the Act constituting undue influence must
be in the nature of pressure or tyranny on the mind of voter.
(51) At this stage, it would be appropriate to notice, the principle
of law laid down by Supreme Court in Anil Vasudev
Salgaonkar (supra) in which it has been held, that the failure
to place even a single material facts amounts to disobedience
of the mandate of Section 83(1) (a) of the RP Act, 1951. The
report states as under:-
“59. In the context of a charge of corrupt practice,
“material facts” would mean all basic facts constituting
the ingredients of the particular corrupt practice 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
pleading becomes deficient.
61. The legal position has been crystallised by a series
of the judgments of this Court that all those facts
which are essential to clothe the election petitioner
with a complete cause of action are “material facts”
which must be pleaded, and the failure to place even
a single material fact amounts to disobedience of the
mandate of Section 83(1)(a) of the Act.”
(52) On the basis of above-mentioned legal analysis, it is
held that election petitioner has failed to plead material facts
constituting the ingredient of corrupt practice of undue influence
within the meaning of Section 123(2) of the RP Act,
39
1951 as mandated under Section 83(1) (b) of the Act. It must
be further held that pleadings relating to ground stated in
Section 100(1)(b) of the Act do not disclose any cause of action
calling for trial, therefore the election petition so far as it
relates to ground stated in Section 100(1)(b) of the Act must
be rejected. However, in view of conclusion reached hereinabove,
I deem it inappropriate to examine the issue of defective
affidavit raised on behalf of returned candidate/respondent
No.1 being unnecessary.
(53) As a fall out and consequence of the aforesaid discussion,
the application filed by returned candidate/ respondent
No.1 under Order 7 Rule 11 of the CPC is partly allowed and
said application is disposed of in following terms:-
(i) That the election petition discloses a triable cause
of action for ground stated in Section 100(1)(d)(i) of the
RP Act, 1951.
(ii) That the election petition doesn’t disclose a triable
cause of action for ground stated in Section 100(1)(b) of
the RP Act, 1951, accordingly paragraph 29 to 32 of the
election petition relating to corrupt practice of undue influence
along with other related pleadings stands struck
off as such ground stated in Section 100(1)(b) of the Act
is not available to the election petitioner to question the
40
validity of the election of the respondent No.1/returned
candidate.
(54) No order as to cost(s).
Judge
41
Head Note
English
(1) Application under Order 7 Rule 11 of the CPC is maintainable
for summary disposal of election petition if no cause of action.
HINDI
(1) ;fn dksbZ okn gsrqd mRiUu ugha gS] rks pquko ;kfpdk ds laf{kIr fujkdj.k gsrq
vkosnu varxZr vkns’k 7 fu;e 11 O;‐iz‐l‐ iks"k.kh; gS A
(Amit Dubey)
Private Secretary
42
43
HIGH COURT OF CHHATTISGARH
----------------------------------------------------------------------------------
Single Bench: Hon’ble Shri Justice Sanjay K. Agrawal
----------------------------------------------------------------------------------
Election Petition No. 01 of 2014
PETITIONER : Bedanti Tiwari
Versus
RESPONDENTS : Bhaiyalal Rajwade and others
O R D E R
Post for pronouncement on .03.2014.
Judge
.03.2015
44