Full Text
REGD. No. D. L.-33004/99
The Gazette of India
CG-DL-E-04092025-265939
EXTRAORDINARY
PART II—Section 3—Sub-section (iii)
PUBLISHED BY AUTHORITY
No. 38]
NEW DELHI, WEDNESDAY, SEPTEMBER 3, 2025/BHADRA 12, 1947
ELECTION COMMISSION OF INDIA
NOTIFICATION
New Delhi, the 2nd September, 2025
Ο.Ν. 38(E).- In pursuance of Section 106 (a) of the Representation of the People Act, 1951 (43 of 1951), the
Election Commission hereby publishes the judgment/order of the High Court of Karnataka (Bengaluru Bench)
dated 7th July, 2025 in Election Petition No. 4/2024.
[F. No. 82/KT-HP/4/2024]
By Order,
PAWAN DIWAN, Secy.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
ELECTION PETITION NO. 4 OF 2024
BETWEEN:
MR M.G POORNACHANDRATHEJASWI
S/O LATE GOWDE GOWDA MG
AGED ABOUT 49 YEARS
R/AT SUVARNA SOUDHA
KUVEMPU ROAD
OPPOSITE CREIST SCHOOL
VIDYANAGARA
HASSAN 573201
...PETITIONER
(BY SRI. NISHANTH A V., ADVOCATE)
AND:
MR. SHREYAS M PATEL
S/O LATE P. MAHESH
AGED ABOUT 31 YEARS
RESIDING AT NO. 12
RIVER BANK ROAD, HOLENARASIPURA
HASSAN 573211
...RESPONDENT
(BY SRI. PRABHULING K. NAVADGI, SR, COUNSEL FOR
SRI. SHIVACHARAN R., ADVOCATE)
THIS ELECTION PETITION IS FILED UNDER SECTION 81 OF THE REPRESENTATION OF PEOPLE
ACT, 1951, PRAYING TO
(A) CALL FOR RECORDS.(B) SET ASIDE THE ELECTION OF THE RESPONDENT TO THE 18TH LOK SABHA
PARLIAMENTARY ELECTIONS FROM NO.16-HASSAN PARLIAMENTARY CONSTITUENCY. (C)
PASS SUCH OTHER ORDER/S, GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT DEEMS
FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL ORDER
1. I.A. No.2 of 2024 is filed by the original respondent in the Election Petition, seeking rejection of the
election petition under the provisions of Order VII Rule 11 of the Civil Procedure Code, 1908.
2. The petitioner has filed an Election Petition seeking a declaration that the election of the Respondent to
18th Lok Sabha Parliamentary Elections from 16- Hassan parliamentary constituency, Karnataka State, be set
aside.
3. Brief facts leading rise to the filing of this election petition are as follows:
4. The petitioner is a voter of Hassan Parliamentary Constituency. Wherein, his name is enrolled in Part No.137,
Govt. Higher Primary School, Malali at Serial No.272 of 197, Holenarsipura Assembly Constituency.
The respondent contested the election from Hassan constituency as an official candidate of the Indian
National Congress, a registered political party. The elections were announced on 16/03/2024. In the state of
Karnataka, two phase elections was notified by the Election Commission of India. The result of the
elections were declared on 04.06.2024, in which the respondent was declared as the elected candidate.
5. The petitioner has raised an objection about the declaration made by the Respondent in the Affidavit i.e., in
Form No.26 filed along with the nomination papers by the respondent. It is contended that the respondent has
not disclosed three immovable properties i.e., the property bearing Khatha No.172/162, measuring to an
extent of 22.10 ft. * 33 ft., situated in the limits of Town Municipal Council, Holenarsipura, the land
bearing Survey No. 170/2, measuring to an extent of 3 guntas situated at Udduru Hosahalli Village,
and the land bearing Survey No. 35-B, measuring to an extent of 4510 sq. mtrs., situated at Doddanekundi
Industrial Estate, K.R. Puram taluk, Bangalore South. The disclosure of the aforementioned properties had
to be made by the respondent in column No.7(B)(ii) and 7(B)(iii) of Form No.26 affidavit. Non disclosure
of the aforementioned three immovable properties in column No.7(B)(ii) and 7(B)(iii) of Form No.26
affidavit is a defect of substantial character. Thus, the nomination of the respondent ought to have been
rejected and it was improperly accepted by the returning officer. In view of the improper acceptance of
the nomination of the respondent, the result of the election to No.16 Hassan parliamentary constituency has
been materially affected, since the respondent is a returned candidate himself. The petitioner has
accordingly challenged the election of the Respondent under the
provisions of section 100(1)(d)(i)
and (d)(iv) of the Representation of the People Act, 1951. (for short, "the Act” or “R.P. Act").
6. This Court issued a summons to the respondent. After the service of summons, the respondent appeared
in the election petition, and filed his written statement. Additionally, the respondent has filed the present
application seeking rejection of the election petition under the provisions of Order VII Rules 11(a) and (d) of
the Civil Procedure Code, 1908. The petitioner has filed an affidavit in reply, opposing the said application.
7. The application is called out for hearing.
8. Sri. Prabhuling Navadagi, learned Senior Counsel appearing for the respondents, submits that the election
petition does not disclose any cause of action for questioning the election of the respondent. That when
averments of the election petition are read as a whole, it is clear that the petition lacks the necessary
averments for the purpose of maintaining a challenge to the election of the respondent under the
provisions of the Representation of Peoples Act, 1951. The entire election petition is premised on a declaration
made by the respondent in his affidavit in Form No.26 in which he did not disclose three immovable
properties. He would also rely upon the provisions of Section 83 of the Act in support of his contention that
the election petition does not contain a concise statement of material facts on which the petitioner has
relied upon. That, there is no averment in the election petition that a non disclosure of the immovable
properties in Form No.26 materially affects the results of the election. There is no cause of action disclosed
in the petition in support of the contention. So far as the provisions of Sections 100(1)(d)(i) and 100(1)(d)(iv)
of the Act are concerned, there is no averment in the petition that the result of the election has
been materially affected in any manner. There are no averments in support of the grounds under Section
100(1)(d)(i) of the Act and there is an absence of a pleading about improper acceptance of the nomination.
The petition deserves to be rejected. Similar is the position in respect of the ground under Section
100(1)(d)(iv) where non compliance with the provision of the Act or Election Rules has not been borne
out by the pleadings in the Election Petition.
9. Sri Prabhuling Navadagi, learned Senior Counsel, accordingly submit that in the absence of necessary
averments in the election petition for making out a valid ground of challenge to the election of the respondent
under the aforesaid provisions of the Act, the petition deserves to be rejected under the provisions of Order
VII Rule 11 of the Civil Procedure Code, 1908. Accordingly, prays to allow the Application. In support
of his contentions, Sri Prabhuling Navadagi would rely upon the following citations:
i. Kanimozhi Karunanidhi Vs. A. Santhana Kumar and Ors. Reported in MANU/SC/0533/2023 : AIR
2023 SC 2366
ii. Manganilal Mandal Vs. Bishnu Deo Bhandari reported in (2012) 3 Supreme Court Cases 314
iii. Karikho Kri V. Nuney Tayang and another, reported in AIR 2024 SUPREME COURT 2121
iv. Tek Chand V.Dile Ram reported in (2001) 3 Supreme Court Cases 290
V. Kalyan Kumar Gogoi V. Ashutosh Agnihotri and Another reported in (2011) 2 Supreme Court Cases
532
vi. Kalyan Singh Chouhan Vs. C.P. Joshi in Civil Appeal No. 870 of 2011 (Arising out of SLP (C) No.
16944 of 2010)
vii. Anil Vasudev Salgaonkar V. Naresh Kushali Shigaonkar reported in (2009) 9 Supreme Court Cases
310
viii. Ram Sukh V. Dinesh Aggarwal reported in (2009) 10 Supreme Court Cases 541
ix. Mairembam Prithviraj v Pukhrem Sharatchandra Singh reported in (2017) 2 Supreme Court Cases
487
x. Satish Ukey Vs. Devendra Gangadharrao Fadnavis and Ors., in Criminal Appeal Nos. 1515-1516 of
2019 (Arising out of SLP (Crl.) Nos. 19-20 of 2019)
xi. Resurgence India Vs. Election Commission of India and Ors., in Writ Petition (Civil) No. 121 of
2008 (Under Article 32 of the Constitution of India)
xii. D Krishna Kumar v HD Ranganath and ors in EP 11/2023 – decided on 21.06.24
xiii. Karim Uddin Barbhuiya vs. Aminul Haque Laskar and Others reported in 2024 SCC OnLine SC
509
xiv. Peoples Union For Civil Liberties and Anr v. Union Of India reported in (2003) 4 SCC 399
xv. Laxmi Devi v State of Bihar reported in (2015) 10 SCC 241.
10. The application is opposed by Sri. Nishanth A.V, the learned counsel for the petitioner. He would submit that
the Election petition contains the necessary averments for maintaining a valid challenge to the election of the
respondent. He would submit that the election petition must be read as a whole and upon holistic reading of the
averments in the election petition, it can barely be contended that the petition does not disclose the cause of
action for challenging the election. He would also submit that the averments in Para No. 10 of the
Memorandum of Election petition contain necessary averments of the respondent making a false statement
in his nomination papers/form. The Returning officer ought to have returned the nomination form of the
respondent after noticing the non disclosure of the immovable properties owned and possessed by the
respondent. Since the form was defective, it warranted outright rejection. That once the acceptance of
nomination itself is found to be erroneous and improper, it is not necessary for the election petitioner to
additionally prove that the result of the election was materially affected by such improper acceptance of the
nomination. The election petition contains necessary averments for taking the election petition to trial. The
petitioner must be given an opportunity to lead evidence to substantiate, and prove the averments made in the
memorandum of Election Petition. The requirement under Section 83 is only to make a concise statement
of facts and it is unnecessary to plead every possible details. That once an averment is made that the
declaration made in the nomination form is false, the petitioner must be given an opportunity to prove
the said allegation by leading evidence.
11. In support of his contention, he has relied upon the following judgments, and he would pray for the dismissal
of an application filed by the respondent:
a) Thangjam Arunkumar v Yumkham Erabot Singh and others reported in 2023 SCC Online SC 1058;
b) Bhim Rao Baswanath Rao Patil v. K Madan Mohan Rao and ors, reported in 2023 SCC Online SC 871;
c) Ashraf Kokkur v. K V Abdul Khader and others reported in 2015 (1) SCC 129;
d) Ram Sukh v Dinesh Aggarwal reported in (2009) 10 SCC 541;
e) Ponnala Lakshmaiah v Kommuvi Pratap Reddy and Ors reported in (2012) 7 SCC 788;
f) Vashist Narain Sharma v Dev Chandra and Ors, reported in (1954) 2 SCC 32;
g) Mairembam Prithviraj V. Pukhrem Sharatchandra Singh reported in (2017) 2 SCC 487;
h) Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy and ors reported in (2018)
14 SCC 1;
i) Arjun Panditrao Khotkar v. Kailash Kushanrao Goryantyal and Ors reported in (2020) 7 SCC 1;
j) K. Shivakumar v. N A Haris and Ors, in E.P.No.09/2023 decided on 12.02.2024;
k) K. M. Thimmarayappa V. H V Venkatesh, in E P No. 06/2023 decided on 01.03.2024.
12. Rival contentions of the parties now fall for my consideration.
13. The petitioner filed a petition challenging the respondent's election fromNo-16 Hassan parliamentary
constituency by raising grounds under Sections 100(1)(d)(i) and 100(1)(d)(iv) of the Act. It would therefore
be necessary to reproduce the provisions of Section 100 of the Act, which enumerates the grounds on which
the election can be declared to be void. Section 100 of the Act provides thus:
"100. Grounds for declaring election to be void.-
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be
chosen to fill the seat under the Constitution or this Act or the Government of Union Territories
Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent
or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been
materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate
by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception
of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act
or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election
agent, of any corrupt practice but the High Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election
agent, and every such corrupt practice was committed contrary to the orders, and 8without the
consent, of the candidate or his election agent;
(b) that the candidate and his election agent took all reasonable means for preventing the commission
of corrupt practices at the election; and
(c) that in all other respects the election was free from any corrupt practice on the part of the
candidate or any of his agents, then the High Court may decide that the election of the
returned candidate is not void. "
14. Section 83 of the Act deals with the contents of the Election Petition, and provides thus:
"83. Contents of petition.-
(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including
as full a statement as possible of the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil
Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied
by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the
particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same
manner as the petition."
15. The combined reading of the provisions of Sections 100 and 83 of the Act would mean that the
Election Petition needs to contain a concise statement of material facts, based on which the grounds
enumerated under Section 100 of the Act are sought to be made out. When an allegation of corrupt
practice is raised, the Election Petition needs to include a full statement of the names of the
parties alleged to have committed such a corrupt practice, along with the date and place of commission
of each such practice. Therefore, an election petition which does not comply with the provisions of
Section 83 of the Act, by not disclosing either the concise statement of material facts or full particulars
of the corrupt practice necessarily attracts the provision of Order VII Rule 11 of the Code of Civil
Procedure, under which the election petition can be rejected. This is because the election petition is
a statutory remedy, and not an action in equity or a remedy in common law. Since the Act is a complete
and self- contained Code, strict compliance with the provision of the Act is a mandatory requirement
while exercising the remedy under the said Act. Reference in this regard can be made to the Hon'ble
Apex Court Judgment in the case of Jyoti Basu v. Devi Ghosal reported in (1982) 1 SCC 691, wherein
it is held in Para 8 as under:
"8. An election petition is an action at a common law, nor in equity. It is a
statutory proceeding to which neither the common law nor the principles of equity apply,
but only those rules which the statute makes and applies. It is a special jurisdiction, and
a special jurisdiction has always to be exercised in accordance with the statute creating
it."
16. The Hon'ble Apex Court in the case of Kanimozhi Karunanidhi v. A. Santhana kumar and Ors, reported in
2023 SCC Online SC 573, has summarised the legal position in paragraph 28 of the Judgment by examining
various judgments rendered in the past as under:
"28. The legal position enunciated in the afore-stated cases may be summed up as
under:
i) Section 83(1)(a) of RP Act mandates that an election petition shall contain a
concise statement of material facts on which the petitioner relies. If the material
facts are not stated in an election petition, the same is liable to be
dismissed on that ground alone, as the case would be covered by clause (a) of
Rule 11 of Order 7 of the Code.
ii) The material facts must be such facts as would afford a basis for the allegations
made in the petition and would constitute the cause of action, that is every fact
which it would be necessary for the petitioner to prove, if traversed in order
to support his right to the judgment of the court, omission of a single material
fact would lead to an incomplete cause of action and the statement of the plaint
would become bad.
iii) Material facts means the entire bundle of facts which would constitute a
complete cause of action. Material facts would include positive statement of
facts as also positive averment of a negative fact, if necessary.
iv) In order to get an election declared as void under Section 100(1)(d)(iv) of
the R.P. Act, the Election Petitioner must aver that on the account
of non compliance with the provisions of the Constitution or of the Act or any
rules or orders made under the Act, the result of the election, in so far as it
concerned the returned, candidate was materially affected.
v) The Election Petition is a serious matter and it cannot be treated lightly or in
a fanciful manner, nor is it given to a person who uses it as a handle for a
vexatious purpose.
vi) An Election Petition can be summarily dismissed on the omission of a single
material fact leading to an incomplete cause of action, or omission to contain a
concise statement of the material facts on which the petitioner relies for
establishing a cause of action, in exercise of the powers under clause (a) of
Rule 11 of Order VII of the code of civil procedure read with mandatory
requirements enjoyed by Section 83 of the R.P. Act".
17. The Hon'ble Apex Court thereafter held that mere bald and vague allegations would not constitute
sufficient compliance of the requirement of stating material facts in the election petition. The Hon'ble Apex
Court held in paragraphs 31 and 32, as under:
"31. Mere bald and vague allegations without any basis would not be
sufficient compliance of the requirement of stating material facts in the Election
Petition. As well settled not only positive statement of facts, even a positive
statement of a negative fact is also required to be stated., as it would be a
material fact constituting a cause of action. The material facts which are
primary and basic facts have to be pleaded by the election petitioner in support
of the case set up by him to show his cause of action and omission of a single
material fact would lead to an incomplete cause of action, entitling the returned
candidate to pray for dismissal of election petition under Order VII Rule
11(a) of Code of civil procedure read with Section 83(1)(a) of the R.P. Act.
32. It is also significant to note that an affidavit in Form 26 along with
the nomination paper, is required to be furnished by the candidate as per Rule
4A of the said Rules read with Section 33 of the said Act. The Returning
officer is empowered either on the objections made to any nomination. or on
his own motion, to reject any nomination on the grounds mentioned in Section
36(2), including on the ground that there has been failure to comply with any
of the provisions of Section 33 of the Act. However, at the time of scrutiny
of the nomination paper and the affidavit in the form 26 furnished by the
returned candidate, neither any objection was raised, nor the Returning Officer
had found any lapse or non compliance of Section 33 or Rule 4A of the Rules.
Assuming that the petitioner did not have the opportunity to see Form
No. 26 filled in by the appellant- returned candidate, when she submitted the
same to the Returning Officer, and assuming that the Returning Officer had
not properly scrutinized the nomination paper of the appellant, and assuming
that election petitioner had a right to question the same by filing the election
petition under Section 100(1)(d)(iv) of the said Act, then also there are
no material facts stated in the petition constituting the cause of action under
Section 100(1)(d)(iv) of the R.P. Act. In the absence of material facts
constituting cause of action for filing election petition under Section
100(1)(d)(iv) of the said Act, the election petition is required to be dismissed
under Order VII Rule 11(a) CPC read with Section 13(1)(a) of the R.P. Act."
18. The Hon'ble Apex Court in the case of Ravindra Dattaram Waikar v. Amol Gajanan Kirthikar reported in
2024 SCC OnLine Bom 3828 examined the requirements of pleadings for maintaining an election petition
and held that the concise statement of material facts must constitute a complete cause of action. Failure on
the part of the election petitioner to raise necessary pleadings to make out a case of existence of ground
under section 100(1)(d)(iii) and (iv) of the RP Act would necessarily result in dismissal of the election petition
by invoking the powers under order VII Rule 11 of the CPC.
19. Having set out the legal position governing the strict requirements of a pleading in the memorandum of Election
Petition, I now proceed to examine whether the petitioner has raised the requisite pleadings as required under
Section 83 of the Act. The petitioner has sought a declaration of election of the respondent to be void
by invoking the provisions of Section 100(1)(d)(i) and Section 100(1)(d)(iv) of the Act. This is clear from the
following pleading in paragraph 10 of the Election Petition, which reads as follows:
"10. It is submitted that, the voters of No.16- Hassan Parliamentary
Constituency have a Fundamental Right under Article 19(1)(a) of
Constitution of India to know about the candidate(s) contenting the
Elections and this casts a solemn obligation on the Respondent to
furnish information regarding assets and liabilities held by the candidate
(Respondent), in terms of Section 33-A of the Representation of People
Act, 1951. It is on this basis, not only Election Commission of India
has issued orders under Article 324 of the Constitution of India, but also
prescribed under Rule 4A of the Rules, the Affidavit(s) has to be filed. In
the present case, the Affidavit dated 01.04.2024 filed by the Respondent,
inter alia, has failed to disclose 3 properties namely:
(1) Property bearing Khatha No.172/162, situate at River Bank
Road, measuring to an extent of 22.10 Feet X 33 14 Feet situate in the limits
of Town Municipal Council, Holenarasipura, Ward No.11. Authenticated
copies of the Demand Tax Registrar, Tax Paid Receipt and Encumbrance
Certificate is herewith marked and produced as ANNEXURE-G,
ANNEXURE-G1 and ANNEXURE-G2, respectively. Translated copies
of ANNEXURE-G, ANNEXURE-G1 and ANNEXURE-G2 are also
furnished herewith. The said documents are obtained by the petitioner
under the provisions of the Right to Information Act, 2005.
(2) Land bearing Sy.No.170/2 measuring to an extent of 3 Guntas,
situate at Udduru Hosahalli Village, Hall Mysore Hobli, Holenarasipura
Taluk, Hassan District. Copies of the Mutation Registrar, Record of Rights
and Encumbrance Certificate is herewith marked and produced as
ANNEXURE-H, ANNEXURE-H1 and ANNEXURE-H2, respectively.
Translated copies of ANNEXURE-H, ANNEXURE-H1 and
ANNEXURE-H2 are also furnished herewith. The said documents are
obtained by the petitioner under the provisions of the Right to Information
Act, 2005
(3) Land bearing Sy.No.35-B measuring to an extent of 4510
Square Meters situate at Doddanekkundi Industrial Area, K.R.Puram
Taluk, Bengaluru South Taluk. The said property has fallen to the share
of the Respondent by virtue of the will registered on 16.06.2006 by Late
Mr. G.Puttaswamy Gowda. Certified copy of the Will dated 17.06.2006
and Possession Certificate dated 04.12.1995 is herewith marked and
produced as ANNEXURE-J and ANNEXURE-J1 respectively. Translated
copy of Annexure-J is also furnished herewith. Annexure-J is obtained by
the petitioner though Court in OS No. 2189/2008, pending in City Civil
Court, Bengaluru, since the said document is marked as Ex.D1 and
Annexure-J1 is obtained by the petitioner under the provisions of the Right
to Information Act, 2005.
The disclosure of the aforementioned properties had to be made by Respondent
in Column No. 7(B) (ii) and 7(B) (iii) of the Form No. 26 affidavit. Non disclosure
of aforementioned three immovable properties in Column No. 7(B) (ii) and 7(B) (iii)
of the Form No. 26 Affidavit, is a defect of substantial character, thus, the
nomination of the Respondent ought to have been rejected. It is submitted that, the
Nomination of Respondent has been improperly accepted by the Returning Officer.
The Respondent has not disclosed all his assets as mandatorily required and
further, has sworn to a false Affidavit and thus, Nomination Paper of Respondent
ought to have been rejected by the Returning officer in terms of Section-36 of
the Representation of People Act, 1951. In view of the improper acceptance of the
nomination of the Respondent, the result of the election to No.16- Hassan
Parliamentary Constituency has been materially affected, since the Respondent is
a Returned Candidate himself."
20. The objection of the petitioner is about the non disclosure of three immovable properties owned and
possessed by the respondent.
21. The respondent, on the other hand, has defended his action by contending that he has made a true and honest
disclosure in the Affidavit about the properties owned, and possessed by him and he has provided
sufficient information to the members of a democratic society by the candidates. The relevance is
the position that a mere demonstration of violation of the provisions of the Constitution / Act /
Rules is not sufficient, and that it is not mandatory for them to disclose concise statement of the
material facts to demonstrate as to how the election of the returned candidate has been materially affected
by such violation. There is no pleading in the entire election petition to demonstrate, how the election of
the respondent is materially affected on account of the alleged violation of Rule 4A of the Election Rules
by him. To maintain a valid election petition, a linkage must be established between the alleged
violation and the election being materially affected. Thus, to get an election declared as avoid
under the provisions of the Act, the Election Petitioner must aver that on the account of non
compliance with the provisions of the Constitution or of this Act or of any Rules, Order made under the
Act, the result of the Election in so far as it concerns a returned candidate was materially affected.
Here, it is the Petitioner's case that the Returned Candidate has not disclosed three immovable
properties. As observed above there is no averment in the pleadings that the election of the returned
candidate was materially affected. Therefore, in the absence of a link between the alleged violation of
the model of Code of Conduct, and the victory of the returned candidate, however, the petitioner could
assert that because of the alleged violation of the model of Code of Conduct, the voters have cast
their vote to the returned candidate. In fact, the petitioner has, except pleading, that here the
returned candidate has not disclosed three immovable properties, has not placed any material to
the effect that the election of the returned candidate has been materially affected.
22. After considering the oral prospectus of the case, I am of a view that the Election Petition lacks concise
statement of the material facts as required under Section 83(1)(a) of the Act for establishing
grounds under Section 100(1)(d)(i) and Section 100(1)(d)(iv) of the Act.
23. So far as the grounds, there are no pleadings to establish any statement made by the respondent in the
pleadings to establish that any statement made by the respondent in his affidavit is false and there
are no pleadings to establish an undue influence on the voters with their free exercise of electoral
right on the account of non disclosing the three immovable properties. Therefore, the petitioner has failed
to disclose the real cause of action for challenging the election of the respondent by making out either
of the grounds under Section 100(1)(d)(i) or Section 100(1)(d)(iv) of the Act. Even a singular omission
of a statutory requirement must entail dismissal of the election petition by having recourse to the
provision of Order VII Rule 11 of the Civil Procedure Code.
24. The learned counsel for the petitioner has relied on the following authorities, praying for the dismissal
of the present application:
1. In the case of Thangjam Arunkumar v Yumkham Erabot Singh and others reported in 2023 SCC
Online SC 1058, question involved in this case was whether the election petition is liable to be dismissed
by allowing an application filed under order 7 Rule 11 of CPC for non compliance of Section
83(1)(c) of the RP Act. In this case the Hon'ble court has made it very clear that, the requirement to
file an affidavit under the proviso to Section 83(1)(c) of the RP Act is not mandatory. It is sufficient
if there is a substantial compliance and the defect is curable. In this case even though the petitioner
did not file separate and independent affidavit regarding the corrupt practice, though there was an
affidavit sworn by him stating that allegations of corrupt practice are true, it was held that there was a
substantial compliance with the requirements of Section 83(1)(c) of the RPA. The High court's
order dismissing the application under order 7 R. 11 was upheld.
2. In the case of Bhim Rao Baswanath Rao Patil v. K Madan Mohan Rao and ors, reported in 2023
SCC Online SC 871, the Hon'ble Apex court at Para 23 held that, any material brought on record by
the successful candidate who is the respondent in the election petition ipso facto cannot be
considered within the framework of Order 7 Rule 11 of the CPC to reject the plea altogether. At
Para 29, it was held that, even if the allegations regarding non disclosure of cases where the appellant
has been arrayed as an accused are ultimately true, the effect of such allegations has to be considered
after the full trial. The admission of certain facts by the election petitioner cannot be sufficient for the
court to reject the Election Petition. The alleged non compliance with the statutory and election
commission mandated regulations, and their legal effect cannot be examined under Order 7 Rule 11 or
even under Order 12 Rule 6 of the CPC (Para 29).
3. In the case of Ashraf Kokkur v. K V Abdul Khader and others reported in 2015 (1) SCC 129, the
Hon'ble Apex court held at para No.12 that, the requirement under section 83(1)(a) of the RP Act
in contradistinction to Sec. 83(1)(b) of the RP Act is that the election petition need contain only
a concise statement of material facts and not material particulars. At para 22, it is held that the
enquiry under Order 7 Rule 11(a) of the CPC is only as to whether the facts as pleaded disclose
a cause of action and not complete cause of action. It is limited to see whether the petition
should be thrown out at a threshold. The requirement U/s 83 is to provide a precise and concise
statement of material facts. “Material facts" plainly means facts pertaining to subject matter.
4. In the case of Ram Sukh v Dinesh Aggarwal reported in (2009) 10 SCC 541, the Hon'ble Apex
court held at para 10 that the requirement of disclosure of material facts and full particulars as
stipulated in section 83 of the RPA is mandatory. At para 12, it is held that the question revolving
around this case is whether the election petition had set out "material facts" in his petition?.
Material facts depends on the facts of each case. All the basic facts necessary to prove the cause
of action are the material facts. On the other hand, particulars are the details in support of material
facts. Particulars are to be stated to ensure that the opposite party is not taken by surprise
(para 15).
5. In the case of Ponnala Lakshmaiah v Kommuvi Pratap Reddy and Ors reported in (2012) 7
SCC 788, the Hon'ble Supreme court at para 16 held that the burden which lies on the election
petitioner to prove the allegations made by him in the election petition, whether the same relate to
commission of any corrupt practice or proof of any other ground urged in support of the petition has
to be discharged by him at a trial. At para 17, it is held that the courts need to be cautious
in dealing with requests for the dismissal of the petition at the threshold and exercise their power
of dismissal only in cases where even, on plain reading of the petition, no cause of action is
disclosed. At para 31, it is held that the petition that raises a triable issue need not be dismissed
simply because the affidavit filed by the petitioner is not in a given format, no matter the
deficiency in the format has not caused any prejudice to the successful candidate and can be
cured by the election petitioner by filing a proper affidavit.
6. In the case of Vashist Narain Sharma v Dev Chandra and Ors, reported in (1954) 2 SCC 32, at
para 9, it is held that the onus of proving that the result had been materially affected rests heavily
on the petitioner. The questions can arise in one of these ways:
a. Where the candidate whose nomination was improperly accepted secured less
votes than the difference between the returned candidate and the candidate
securing the next highest votes.
b. Where the person referred to above, secured more votes, and
c. Where the person whose nomination has been improperly accepted, is the
returned candidate himself.
7. In the case of Mairembam Prithviraj V. Pukhrem Sharatchandra Singh reported in (2017) 2 SCC
487, at para 23 it is held that if the nomination of a candidate other than the returned candidate
is found to have been improperly accepted, it is essential that the election petitioner has to plead
and prove that the votes polled in favour of such candidate would have been polled in his favour.
On the other hand, if the improper acceptance of nomination is of the returned candidate there is
no necessity of proof that the election has been materially effected as the returned candidate would
not have been able to contest the election if nomination was not accepted.
8. In the case of Madiraju Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy and ors
reported in (2018) 14 SCC 1, it is held that if the improper acceptance of nomination is of
returned candidate, it is not necessary to prove that it has been materially affected. Because, a
candidate whose nomination is not acceptable but is elected, itself materially affects election
results.
9. In the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Goryantyal and Ors reported in (2020)
7 SCC 1, it is held at para 72 that if the person whose nomination has been improperly accepted
is the returned candidate himself, it may be readily conceded that the conclusion has to be that the
result of election would be materially effected without there being any necessity to plead and
prove the same.
10. In the case K. Shivakumar v. N A Haris and Ors, in E. P. No. 09/2023 dated 12.02.2024 (KHC) it is
held that there would be no further requirement of making any further averment or pleading as to
how such improper acceptance has materially effected the election results of the returned
candidate and the general averment that the improper acceptance of nomination of returned
candidate has materially affected the result of the elected candidate is sufficient.
11. In the case of K. M. Thimmarayappa V. H V Venkatesh, in E P No. 06/2023 dated 01.03.2024
(KHC) it is held that the petitioner has categorically asserted that the nomination of the respondent
was improperly accepted despite the respondent not disclosing the two immovable properties
and also not furnishing the particulars of partnership firm, which gave rise to a cause of action to
file the election petition. Therefore, the petitioner not having asserted in what manner the result
of the election of the respondent, who is a returned candidate, was materially affected, is not a ground
for dismissing the Election petition under Order 7, Rule 11 of the CPC R/w 38(i)(a) of the RP
Act, 1951.
25. The judgments relied upon, by the learned counsel for the petitioner state that if the improper
acceptance of nomination is of returned candidate, it is not necessary to plead and prove that it has
been materially affected. Since, in the instant election petition, the petitioner has failed to plead, as to
how the result of the election of the Respondent was materially affected by the improper acceptance of
the nomination. The cases does not apply to the case on hand.
26. The learned senior counsel Sri. Prabhuling Navadagi, has placed reliance on the following authorities,
praying to allow the application:
1. In the case of Kanimozhi Karunanidhi Vs. A. Santhana Kumar and Ors reported in AIR 2023
SC 2366, it is held at para 50 that 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. At para 31,it is held that, Mere bald and vague
allegations without any basis would not be sufficient compliance of the requirement of stating
material facts in the Election Petition.
2. In the case of Manganilal Mandal Vs. Bishnu Deo Bhandari reported in (2012) 3 Supreme
Court Cases 314, it is held at para 10 that, 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. At para 11 it is held
that, for the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv), he has not
only to plead and prove the ground but also that the result of the election insofar as it concerned
the returned candidate has been materially affected.
3. In the case of Karikho Kri V. Nuney Tayang and another reported in AIR 2024 SUPREME
COURT 2121, it is held at para 45 that, So far as the ground under Section 100(1)(d)(iv) of the
Act of 1951 is concerned, the provision requires that the established non-compliance 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.
4. In the case of Tek Chand V. Dile Ram reported in (2001) 3 Supreme Court Cases 290, it is
held at para 14 that, in an election petition where an election of a returned candidate is impeached
under Section 100(1)(d) (i) of the RPA, it is not enough only to establish that the nomination
of a candidate was improperly accepted. In addition, it has to be further established that such
wrong acceptance of nomination paper has materially affected the result of the election insofar it
concerned the returned candidate.
5. In the case of Kalyan Kumar Gogoi V. ASshutosh Agnihotri and Another, reported in (2011) 2
Supreme Court Cases 53, it is held at para 50 that, the heads of substantive rights in Section
100(1) are laid down in two parts: the first dealing with situations in which the election must be
declared void on proof of certain facts and the second in which the election can only be declared
void if the result of the election, insofar as it concerns the returned candidate, can be held to
be materially affected on proof of some other facts. The appellant has totally failed to prove that the
election of Respondent 2, who is a returned candidate, was materially affected because of
non-compliance with the provisions of the Representation of the People Act, 1951, or Rules or
Orders made under it.
6. In the case of Kalyan Singh Chouhan Vs. C.P. Joshi inCivil Appeal No. 870 of 2011
(Arising out of SLP (C) No. 16944 of 2010), it is held at para 14 that, during the trial of an
election petition, it is not permissible for the court to permit a party to seek a roving enquiry.
The party must plead the material fact and adduce evidence to substantiate the same so that the
court may proceed to adjudicate upon that issue.
7. In the case of Anil Vasudev Salgaonkar V. Naresh Kushali Shigaonkar reported in (2009) 9
Supreme Court Cases 310, it is held at para 57 that, Failure to state even a single material
fact will entail dismissal of the election petition. The election petition must contain a concise
statement of "material facts" on which the petitioner relies. At para 61 it is held that, "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.
8. In the case of Ram Sukh V. Dinesh Aggarwal reported in (2009) 10 Supreme Court Cases 541,
it is held at para 18 that, undoubtedly, by virtue of Section 87 of the Act, the provisions of the
Code apply to the trial of an election petition and, therefore, in the absence of anything to the
contrary in the Act, the court trying an election petition can and in exercise of its power under the
Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the
provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive,
should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining
to ordinary civil litigation, it must apply with greater vigour in election matters where the
pendency of an election petition is likely to inhibit the elected representative of the people in
the discharge of his public duties for which the electorate have reposed confidence in him. The
submission, therefore, must fail. At para 21 it is held that in order to get an election
declared as void under the said provision, the election petitioner must aver that on account of non-
compliance with the provisions of the Constitution or of this Act or of any rules or orders made
under the Act, the result of the election, insofar as it concerned the returned candidate was materially
affected.
9. In the case of D Krishna Kumar v H D Ranganath and ors in E. P. No. 11/2023 decided on
21.06.24, it is held at 58 that it is also pertinent to mention here that a particular fact is material or
not is depend upon the nature of the allegation made in the petition under the circumstance of
each case on merits Therefore, it is required for the petitioner in the present case to narrate the
essential facts with complete cause of action to be pleaded and failure to plead even a single
material fact is contrary to the requirement of Section 83(1)(a) of the RP Act, 1951. It is also to be
considered that the allegations of corrupt practice as narrated in the election petition are in the
nature of criminal charges against the respondents and therefore, there should not be vagueness in
making allegation so that, the respondents may know the case that they have to meet the
allegations in the petition. The charge of corrupt practice being quasi-criminal in nature and as
such, the Court has to insist on strict compliance with the provisions of law. Therefore, it is equally
essential that the particulars of a charge of allegations are clearly and precisely stated in the petition.
The burden, is on the petitioner who challenges the election which has been concluded. It is also
to be noted that the provision under Section 83(1)(a) of the RP Act, 1951 requires that, while
challenging the election of the returned candidate, the election petitioner should take extra care,
leave no room for doubt while making any allegation of corrupt practice indulged in by the
successful candidate [See (2014)10 SCC 547].
10. In the case of Karim Uddin Barbhuiya V. Aminul Haque Laskar and Others reported in 2024
SCC OnLine SC 509, it is held at para 22 that though it is true that the Election Petitioner is
not required to state as to how corrupt practice had materially affected the result of the election,
nonetheless it is mandatory to state when the clause (d)(i) of Section 100(1) is invoked
as to how the result of election was materially affected by improper acceptance of the nomination
form of the Appellant. At para 24 it is held that in Election Petition, the pleadings have to be
precise, specific and unambiguous. If the allegations contained in Election Petition do not set out
grounds as contemplated in Section 100 and do not conform to the requirement of Section 81
and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of
CPC. An omission of a single material fact leading to an incomplete cause of action or omission
to contain a concise statement of material facts on which the Election petitioner relies for
establishing a cause of action, would entail rejection of Election Petition under Order VII Rule
11 read with Sections 83 and 87 of the Representation of Peoples Act.
27. There is no dispute regarding the authorities relied upon by the learned senior counsel for the Respondent.
They are applicable to the case on hand as the petitioner, in the instant election petition, has not pleaded
in the petition, as to how the result of the election of the Respondent was materially affected by
improper acceptance of the nomination. In my view, therefore, the Application deserves to be allowed, and
the Election Petition is liable to be dismissed.
28. In view of the above discussion, I proceed to pass the following order:
ORDER
(i) I.A. No. 2 of 2024 is allowed.
(ii) Consequently, the Election Petition is dismissed.
Sd/-
Judge
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054. SARVESH KUMARSH
SRIVASTAVA Date: 2025.09.04 18:0811