1. I.A. No.13540/2024 and I.A. No.13541/2024 – which are the applications filed on behalf of the respondents under Order 7 Rule 11 of Code of Civil Procedure for rejection of election petitions are taken into consideration.
2. Since the issue involved in these petitions is one and the same, and the applications filed under Order 7 Rule 11 CPC are identical therefore, they are heard together and are being decided analogously by this common order. However, for the sake of convenience pleadings made in EP No.6 of 2024 is being taken as the lead case.
3. The election petition has been filed challenging the election of the respondent on the ground that the respondent has not furnished correct and complete information at the time of submission of his nomination paper as well as in the affidavit submitted in Form 26 of the Conduct of Election Rules, 1961 (hereinafter referred as 'Rules of 1961'). Thus, there is no proper acceptance of his nomination paper. It is further pleaded that there as certain blank columns left in the nomination paper. Thus, there is non-compliance of mandatory provisions of the Representation of People Act, 1951 (hereinafter referred as 'Act of 1951') and the Rules of 1961. He has failed to comply with the Rule 4A of the Rules of 1961 by not furnishing the mandatory affidavit in Form 26 along with the nomination paper. Thus, he has committed corrupt practice in terms of Section 100(1)(d)(iv) of the Act of 1951.
4. It is argued by the counsel for the respondent that all the detailed particulars which are required to be furnished with the nomination paper as well as with the affidavit which is submitted in terms of Form 26 are submitted by the respondent at the time of submission of his nomination paper. The election of a candidate can only be challenged in terms of the grounds mentioned in Section 100 of the Act of 1951 which deals with grounds for declaring the election to be void. He has placed reliance upon Section 83 of the Act of 1951 which provides for the contents of the petition. It is argued that Section 83 of the Act of 1951 makes it mandatory for the election petitioner to give a concise statement of the material facts which he relies upon and that shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The same has not been complied with by the petitioner while filing this election petition. No detail particulars have been provided in terms of Section 83(1)(b) of the Act of 1951 to establish the corrupt practices alleged against the respondent. It argued that a plain reading of Section 100 conjointly with Section 83 of the Act of 1951 leaves no matter of doubt that where a returned candidate is alleged to be guilty of non-compliance with the provisions of the Constitution or the Act of 1951 or any rules or orders made thereunder the election is sought to be declared void on such grounds. It is essential for the election petitioner to specifically make pleadings regarding material facts to show that the election of the returned candidate have been materially affected by such breach or of non-observance thereon.
5. It is argued that if the entire election petition is seen, the same is silent about the fact that by the alleged non-compliance of the mandatory provisions or non-observation of the Rules, the election of a returned candidate is materially affected. There is not even a single word in the election petition by the petitioners who claim themselves to be the voters that how such alleged non-compliance has materially affected the election of a returned candidate. There are vague statements made in paragraph 25 of the petition with respect to non- compliance of Rule 4A of the Rules of 1961. Even the corrupt practice as defined under Section 123 of the Act of 1951 is not reflected from the pleadings. Merely bald statements have been made that the returned candidate has committed corrupt practice.
6. It is further submitted that the so-called information being furnished along with affidavit annexed with Form 26 gives detailed particulars regarding the information as required and does not amount to any violation of the mandatory provisions as provided under the Act. He has drawn attention of this Court to the nomination form submitted by respondent wherein every column he has furnished details. It is argued that the columns were small in size therefore, at the time of furnishing the details in the prescribed form, he has affixed annexures furnishing the complete particulars to comply with the mandatory provisions. This cannot be said to be violation of the mandatory provisions. In every such column he has mentioned "refer annexure so and so" attached to, forming a part of the said affidavit. Therefore, there is virtually no non-compliance of the mandatory provisions.
7. Counsel appearing for the respondent/applicant has relied upon the judgments passed by the Hon'ble Supreme Court in Vashisht Narain Sharma v. Dev Chandra : (1954) 2 SCC 32, Kamta Prasad Upadhyaya v. Sarjoo Prasad Tiwari : (1969) 3 SCC 622, Manglani Lal Mandal v. Bishnu Deo Bhandari : (2012) 3 SCC 314, Kanimozhi Karunanidhi v. A. Santhana Kumar : 2023 SCC Online SC 573, Dasangula Pul v. Lupalum Kri : 2023 SCC Online SC 1367 and Karikho Kri v. Nuney Tayang : 2024 SCC Online SC 519.
8. He has heavily relied upon the judgment passed in the case of Karikho Kri (supra) wherein the Hon'ble Supreme Court has specifically considered the aspect that furnishing the detailed particulars by way of annexures along with affidavit will be a sufficient compliance of the mandatory provisions and does not violate any of the mandatory provisions. He has also placed reliance upon the judgment passed by the High Court of Madhya Pradesh, Bench at Indore in the case of Suresh Chandra Bhandari vs Smt. Neena Vikram Verma : E.P. No.16 of 2024 decided on 15.07.2024 wherein at initial stage virtually on the same grounds the application under Order 7 Rule 11 CPC was allowed and the election petition was dismissed. He has prayed for a similar relief and election petitions be dismissed.
9. Per contra, counsel appearing for the petitioners has opposed the contentions. It is submitted that there is total non-compliance of the mandatory provisions which were required to fulfilled by the returned candidate at the time of furnishing the information. It is contended that along with the nomination form an affidavit in form of Part A Form 26 has to be submitted as mentioned under the Act and the Rules. It is argued that at Serial No.6(ii) in the table in Form 26 he has mentioned that he has been convicted in case being R.T. No.8825/2013 by the Court of XXI JMFC, Bhopal, for offence punishable under Section 500 of IPC and in column (f) he has been convicted "till the rising of the Court". However, in Part A the said information has been concealed wherein at Serial No.(11)6 he was required to furnish the information with respect to his criminal cases wherein under the heading of 'Total number of cases in which convicted' he has mentioned 'Nil'. Thus, incorrect and misleading information has been provided by him.
10. Serial No.(6A) of Part A mentioned at Note No.5 clearly provides that 'Candidate is responsible for supplying all information in compliance of Hon'ble Supreme Court's judgment in W.P.(C) No.536/2011." It is contended that the said judgment being a Constitutional Bench judgment is binding on all being a law of land and the Hon'ble Supreme Court while dealing with the aspect of criminalization of politics and considering the fundamental rights of the voters to know about the antecedents of the candidates in terms of Article 19(1)(a) of the Constitution of India had made it mandatory for the candidates to disclose their criminal antecedents in bold letters and further directed to give wide publicity to such criminal antecedents. The said has not been done by the respondent. On the contrary, a misleading information has been given by showing 'NIL' under the caption 'Total number of cases in which convicted'. It is further pleaded that in page 6 of the affidavit at Serial No.7 in Form 26 a detailed particulars of the assets (movable and immovable property) of myself, my spouse and all dependents was required to be given. The same has been given in an incomplete manner.
11. Serial No.7(B) of Part A of Form 26 Affidavit Note No.2 provided that each land or building or an apartment should be mentioned separately in this format. The same has not been done by the respondent. The approximate current market value for agricultural land, non-agricultural land, commercial building etc. was required to be furnished. The same has not been done and under the said column, it is mentioned as 'NIL'. It was further required that all columns in the nomination form should be filled and the affidavit should be filled up in the manner asked for and no column to be left blank.
12. At Serial No.8 of Part A of the affidavit under the heading 'Any other liability' he has mentioned an amount of Rs.60,00,000/- (Rs. Sixty Lakhs Only) as advanced against the Duplex, but has not provided the detailed particulars of the Duplex. He has not even given the information of the person for which he has taken the huge amount of Rs.60,00,000/-. The said amount of Rs.60 Lakhs has been reduced to Rs.40 Lakhs at Serial No.9(iii) at page 18 of the affidavit. Thus, an attempt has been made to mislead the voters by making a misleading entries.
13. Under the heading of 'Income Tax Dues' he has mentioned 'NIL' whereas there is a demand of Rs.56,101/- for Assessment Year 2004-05 and Rs.4,35,990/- for Assessment Year 2008-09. Therefore, the said information is incorrectly furnished. At page 14 of the affidavit, he has admitted the fact that he has been provided a government accommodation at C-19, Shivaji Nagar, District Bhopal but he has left blank all the other details as rent, electricity charges, water charges, telephone charges etc. required to be filled up. He drawn attention of this Court to paragraph 25 wherein he has specifically mentioned that Rule 4A of Rules of 1961 has not been complied with and corrupt practices as provided under Section 100(1)(d)(iv) of the Act of 1951 has been taken up by the respondent at the time of filling up of the nomination form as he has not supplied the correct and complete information. It was also mentioned that the said acts has been committed by the returned candidate himself. Therefore, the provisions in terms of Section 100(b) of the Act of 1951 are clearly attracted.
14. It is argued that the affidavit in terms of Form 26 is required to be filled up as mentioned. There cannot be any alteration or modification in the said affidavit. But the respondent has chosen to fill the affidavit in his own format and has not adhered to the format provided therein. Therefore, the same is not acceptable. It is argued that in terms of Order 7 Rule 11 of CPC only the contents of plaint are required to be seen. No detailed enquiry is to be conducted in the matter. The Court is only required to see that whether the pleadings of the plaint make out a case and thereafter the contents of the plaint are required to be proved by leading evidence. The disputed question of facts cannot be decided at this stage being matter of evidence.
15. In the present case, all the grounds which are being raised by the respondent are required to be proved by leading evidence, whether the non-compliance of mandatory informations as required in the nomination form as well as in the affidavit in terms of Form 26 the manner in which they are being given are sufficient to show that the same is not affecting the election of the returned candidate.
16. Learned counsel for the petitioner has placed reliance upon the judgments passed by the Hon’ble Supreme Court in the case of Mairembam Prithiviraj @ Prithviraj Singh v. Pukhrem Sharatchandra Singh (2017)2 SCC 487, Madiraju Venkata Ramana Raju v. Peddireddigari Ramchandra Reddy and others : (2018)14)SCC 1, Kishan Shankar Kathore v. Arun Dattatraya Sawant and others : (2014)14 SCC 162, Krishnamoorthy v. Sivakumar and others : (2015)3 SCC 467 and Mohan Rawale v. Damodar Tatyaba @ Dadasaheb and others : (1994) 2 SCC 392.
17. Heard the counsel for parties and perused the record.
18. For deciding the applications under Order 7 Rule 11 CPC, the plaint averments are essential and required to be seen.
19. This election petition has been filed by the voters pointing out several deficiencies and non-compliance of mandatory provisions by the returned candidate at the time of furnishing of nomination for deciding the State Legislative Assembly Constituency in the State of M.P. which was held on 17.11.2023 of which the results were declared on 03.12.2023.
20. Challenge to the election of the respondent is made on the ground that the nomination form submitted by the returned candidate i.e. respondent should not even be accepted because there is non- compliance of the mandatory provisions of the Act of 1951 and the Rules of 1961. The petitioner has pointed out that along with nomination paper an affidavit is required to be submitted. Several information were required to be furnished but the petitioner has not furnished the complete details as required in the petition. The affidavit in Form 26 is not being furnished in the manner as required. Rather the respondent has made his own format and furnished the detailed particulars. Several columns in the affidavit are left blank. He has pointed out that at Serial No.6 (ii) the information regarding conviction in the criminal case is being mentioned. However, for what period he has been convicted is not mentioned. In Serial No.11(6) the entry which requires 'the total number of cases in which he has been convicted' he has mentioned 'NIL'.
21. The detailed particulars of assets i.e. movable and immovable is required to be given at Serial No.7. The same has not been furnished at a proper place and no detailed information has been furnished. Rather, the affidavit shows the details of all the assets and properties held by the petitioner and family members. The same is reflected from the affidavit. In the columns which are small and detailed particulars could not be furnished in a particular column, an attachment in the form of annexure forming a part of the affidavit was annexed giving the detailed particulars. In the description of the properties, it is mentioned that the assets of the family are not being divided till date between the legal heirs, therefore, it is not possible to reflect the detailed particulars in the affidavit. However, the details of the properties are provided as Annexure - 1 being part of affidavit. It is also contended that if the detailed particulars are being furnished at one place it could not be pointed out at another place in the affidavit Part A or Part B then such non-disclosure will not amount to non-compliance of the mandatory provisions. He has furnished the information in one part of the affidavit.
22. The Election Petition is based upon non-compliance of the provisions as provided under Section 100(1)(d)(iv) of the Act of 1951. Although an attempt is being made to point out that there are certain violations which amount to disqualification of the nomination form. But the fact remains that the allegation should be specific, it should not be vague. The election petitioner has to specifically point out that non- disclosure in toto will materially affect the result of the elections as far as the returned candidate is concerned. He has to specifically show that how the violations pointed out in the election petition materially affect the result of the election. Here it will be relevant to point out the observations made by the Hon’ble Supreme Court in the case of L.R. Shivaramagowda and others vs. T.M. Chandrashekhar (Dead) Through LR’s and others which was considered subsequently in the recent judgment of Hon’ble Supreme Court in the case of Karikho Kri (supra).
23. The Hon'ble Supreme Court has taken note of the aspect that mere general difference in non-compliance of particular provisions and rules will not be an adequate pleading or proof to substantiate or satisfy the requirement of Section 100 (1)(d)(iv) of the Act of 1951.
24. The Hon'ble Supreme Court in the case of Karikho Kri (supra) has held as under –
“45. So far as the ground under Section 100(1)(d)(iv) of the Act of 1951 is concerned, the provision requires that the established noncompliance with the provisions of the Constitution or the Act of 1951 or any rules or orders made thereunder necessarily has to be shown to have materially affected the result of the election insofar as it concerns the returned candidate.
Significantly, the High Court linked all the non- disclosures attributed to Karikho Kri to Section 100(1)(d)(i) of the Act of 1951 but ultimately concluded that his election stood invalidated under Section 100(1)(d)(iv) thereof. Surprisingly, there is no discussion whatsoever on what were the violations which qualified as non-compliance with the provisions of either the Constitution or the Act of 1951 or the rulesand orders framed thereunder, for the purposes of Section 100(1)(d)(iv), and as to how the same materially affected the result of the election.
46. In Mangani Lal Mandal vs. Bishnu Deo Bhandari, this Court held that where a returned candidate is alleged to be guilty of noncompliance with the provisions of the Constitution or the Act of 1951 or any rules or orders made thereunder and his election is sought to be declared void on that ground, it is essential for the election petitioner to aver, by pleading material facts, that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach or non-observance.
It was further held that it is only on the basis of such pleading and proof that the Court would be in a position to form an opinion and record a finding that such breach or non- compliance has materially affected the result of the election before election of the returned candidate could be declared void.
It was further observed that mere non-compliance or breach of the Constitution or the statutory provisions, as stated above, would not result in invalidating the election of the returned candidate under Section 100 (1)(d)(iv) as the sine qua non for declaring the election of a returned candidate to be void on that ground under clause (iv) of Section 100 (1)(d) is further proof of the fact that such breach or nonobservance has resulted in materially affecting the election of the returned candidate.
For the election petitioner to succeed on such ground, viz., Section 100 (1)(d)(iv), he has not only to plead and prove the breach but also show that the result of the election, insofar as it concerned the returned candidate, has been materially affected thereby.
47. In L.R. Shivaramagowda and others vs. T.M. Chandrashekar (Dead) by LRs and others, a 3-Judge Bench of this Court pointed out that in order to declare an election void under Section 100(1)(d) (iv) of the Act of 1951, it is absolutely necessary for the election petitioner to plead that the result of the election, insofar as it concerned the returned candidate, has been materially affected by the alleged non- compliance with the provisions of the Constitution or the Act of 1951 or the rules or orders made thereunder and the failure to plead such material facts would be fatal to the election petition.”
48. However, perusal of the election petition filed by Nuney Tayang reflects that the only statement made by him in this regard is in Paragraph 21 and it reads as follows:
'Hence, his nomination papers suffer from substantial and material defects. As such, the result of the election, insofar as the respondent No.1 is concerned, is materially affected by the improper acceptance of his nomination as well as by the non- compliance with the provisions of the Representation of the People Act, 1951 and the rules and orders made thereunder, including Section 33(1) of the Representation of the People Act, 1951, Rule 4A of the Conduct of Election Rules, 1961 and the orders made thereunder.'
Again, in his 'Ground No. (ii)', Nuney Tayang stated as under: 'As such, the nomination papers of the respondent Nos. 1 and 2 were improperly accepted by the Returning Officer and the result of the election in question, insofar as it concerns the respondent No.1 the return candidate, as well as the respondent No.2, has been materially affected by such improper acceptance of their nominations.'
Though there are some general references to non-compliance with particular provisions of the Act of 1951 and the rules made thereunder, we do not find adequate pleadings or proof to substantiate and satisfy the requirements of Section 100(1)(d)(iv) of the Act of 1951. Therefore, it is clear that Nuney Tayang tied up the improper acceptance of Karikho Kri's nomination, relatable to Section 100(1)(d) (i) of the Act of 1951, with the non-compliance relatable to Section 100(1)(d)(iv) thereof and he did not sufficiently plead or prove a specific breach or how it materially affected the result of the election, in so far as it concerned the returned candidate, Karikho Kri.
It was not open to Nuney Tayang to link up separate issues and fail to plead in detail and adduce sufficient evidence in relation to the noncompliance that would attract Section 100(1)(d)(iv) of the Act of 1951.
The finding of the High Court in that regard is equally bereft of rhyme and reason and cannot be sustained.
49. As regards the failure on the part of Karikho Kri to disclose the dues of municipal/property taxes payable by him and his wife, the same cannot be held to be a non-disclosure at all, inasmuch as he did disclose the particulars of such dues in one part of his Affidavit but did not do so in another part. In any event, as Mr. Arunabh Chowdhury, learned senior counsel, fairly stated that he would not be pressing this ground, we need not labour further upon this point."
25. The other arguments raised by the other petitioners regarding non-payment of the dues, he is required to show that how non-payment of dues which are pointed out will materially affect the result of the returned candidate.
26. It is true that the Constitution Bench of this Court in the case of Union of India v. Association of Democratic Reform : (2002)5 SCC 294 has categorically held regarding filing of affidavits and giving detailed particulars in affidavit in Form 26. The said direction is being given just to ensure that false declarations are not being given by the returned candidate nor the nomination forms are being submitted making false declaration. It does not means that if the complete information is being given in the affidavit annexing an annexure to it, the same cannot be said to be the non-compliance. The judgments which are being relied upon by the petitioners are duly considered by the Hon'ble Supreme Court in the case of Karikho Kri (supra).
27. The Hon'ble Supreme Court in the case of Dasanglu Pul v. Lupalam Kri (supra) has held as under-
"18- As noted, we have indicated that the contention of the respondent in the present facts that it would amount to non- disclosure and therefore a defect of substantial character cannot be accepted and since in that circumstance it is not a case of improperly accepted nomination, it certainly has not materially affected the result of the election as contemplated in Section 100(1)(d)(i)(iv) of the RP Act, 1951. Further, even if the object with which this Court in Union of India vs. Association for Democratic Reforms (2002) 5 SCC 294 has required the disclosure of assets is kept in view, the facts involved herein would indicate that the allegation herein cannot be taken as non-disclosure though it could have been open for the appellant to indicate this aspect in the affidavit but in any event, it is not a substantial defect so as to materially affect the result of the election in the facts and circumstances herein."
28. The test which is required to maintain an election petition was considered by the Hon'ble Supreme Court in the case of Kanimozhi Karunanidhi v. A Santhana Kumar and others (supra) wherein the Hon'ble Supreme Court has considered the requirement of Section 83(1)(A) of the EP Act, which reads as follows-
"23. The law so far developed and settled by this Court with regard to the non-compliance of the requirement of Section 83(1)(a) of the EP Act, namely - “an Election petition must contain a concise statement of material facts on which the petitioner relies”, is that such non-compliance of Section 83(1)(a) read with Order VII, Rule 11, CPC, may entail dismissal of the Election Petition right at the threshold.“Material facts” are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election petition on the basis of the facts pleaded in the petition.They must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure 1908. Material facts would include positive statement of facts as also positive statement of a negative fact."
29. In the case of Ramsukh v. Dinesh Agrawal reported in (2009)10 SCC 541 and Harishankar Jain v. Sonia Gandhi reported in (2001) 8 SCC 233 wherein it has been held –
“23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression “cause of action” has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238 : (1969) 3 SCR 603] , Jitendra Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999) 3 SCC 737] this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead “material facts” is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time- limit prescribed for filing the election petition.
24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.”
30. In case of Mahadeorao Sukaji Shivankar v. Ramratan Bapu : (2004)7 SCC 181 the Hon'ble Supreme Court had an occasion to consider the aspect that what amounts to material facts in an election petition. The said expression has not been defined under the Act or under the Code. However, the Hon'ble Supreme Court held "material facts are all basic and primary facts which must be proved at trial by the party to establish existence of cause of action or defence and must be stated in a pleading by the party. The cause of action should be specifically mentioned in the election petition.
31. The nomination form submitted by the respondent was duly considered by the returning officer. The objections which were filed were taken note of and the form was accepted on 01.11.2023. The returning officer has not found any defect in the nomination form of the respondent. Even the compilation shows that the nomination form was submitted along with affidavit in the form of Form 26 along with the annexures which forms part of affidavit giving all the detailed particulars as required in the affidavit. It cannot be said that there is non-compliance of any of the mandatory provisions as required under the Act of 1951. Mere minor differences in the nomination form or non- disclosure of some information regarding dues, as in the present case cannot be said to be a substantial defect so as to materially affect the result of the election.
32. Under these circumstances, and after going through the entire pleadings made in the election petition, this Court is of the considered view that the grounds raised in the election petition are not made out looking to the settled provisions of law by the Hon'ble Supreme Court in the aforesaid judgments. The petitioners have not averred as to how the result of the returned candidate can be affected by minor deficiencies. Thus, the petitioners have failed to make out any cause of action. Both the applications being I.A. No.13540/2024 and I.A. No.13541/2024 filed under Order 7 Rule 11 CPC deserves to be and are hereby allowed.
33. The election petitions sans merit and is accordingly dismissed.
34. No order as to costs.
