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PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS)

NOTIFICATION

DPAR 13 CHUTHAA 2025, Bengaluru, Dated: 14.03.2025

ELECTION COMMISSION OF INDIA

Nirvachan Sadan, Ashoka Road, New Delhi – 110001

No:82/KT-LA/200001/2023

Dated: 27^th February, 2025

8 Falgun, 1946 (Saka)

NOTIFICATION

No:82/KT-LA/200001/2023 - In pursuance of Section 106 (b) of the Representation of the

People Act, 1951 (43 of 1951), the Election Commission of India hereby publishes the

judgment / order of the High Court of Karnataka, Kalaburagi, dated:21.10.2024 in the

Election Petition No.200001/2023.

¨sÁUÀ – 4ಎ

Part – IVA

14

2025

23

1946)

BENGALURU, FRIDAY, 14, MARCH, 2025

PHALGUNA , 23, SHAKAVARSHA, 1946)

. 151

No. 151

IN THE HIGH COURT OF KARNATAKA AT

KALABURAGI BENCH

DATED THIS THE 21^ST DAY OF OCTOBER, 2024

BEFORE

THE HON’BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

ELECTION PETITION No.200001/2023

BETWEEN :

SRI SHASHIKUMAR S PATIL

S/O SHAM RAO

AGED ABOUT 49 YEARS

No.153, CHAVALI

CHOULI BIDAR KARNATAKA – 585 402.

(BY SRI VISHAAL V SHRIYAN, ADVOCATE)

AND :

1.

ELECTION COMMISSION OF INDIA

NIRVACHANA SADAN, ASHOKA ROAD

NEW DELHI – 110 001.

(REPRESENTED BY ITS SECRETARY).

2.

CHIEF ELECTORAL OFFICER

KARNATAKA ASSEMBLY ELECTION 2023

NIRVACHANA NILAYA,

MAHARANI COLLEGE CIRCLE

SESADHRI ROAD

BANGALORE – 560 001.

… PETITIONER

3.

RETURNING OFFICER

BIDAR NORTH ASSEMBLY CONSTITUENCY-50

ASSISTANT COMMISSIONER OFFICE

BIDAR – 585 401.

4.

RAHIM KHAN

S/O LATE MOHAMOOD KHAN

AGED ABOUT 57 YEARS

R/ AT H.No.9-5-162

VIVEKANAND NAGAR, CHIDRI ROAD

BIDAR – 585 401.

… RESPONDENTS

(BY SRI D P AMBEKAR, ADVOCATE FOR R1-R3

SRI ROHAN HOSMATH, ADVOCATE FOR R4)

---

THIS ELECTION PETITION IS FILED UNDER SECTION 81

OF REPRESENTATION OF PEOPLE ACT 1951, PRAYING TO SET

ASIDE THE ELECTION OF THE 4^TH RESPONDENT TO BIDAR

NORTH ASSEMBLY CONSTITUENCY-50 AND PASS SUCH OTHER

ORDERS / GRANT SUCH OTHER RELEIFS AS THIS HONOURABLE

COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCE OF THE

CASE INTEREST OF JUSTICE AND EQUITY AND ETC.,

THIS ELECTION PETITION IS BEEN HEARD AND RESERVED

ON

21.09.2024

COMING

ON

FOR

‘PRONOUNCEMENT’

OF

ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: HON’BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

CAV ORDER

1.

This

petition

is

filed

under

Section

81

of

the

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

1951) seeking the following prayers;

a) To call for records.

b) Set aside the election of the 4^th respondent to

Bidar North Assembly constituency – 50.Vide

Form No.20 Final Result sheet produced as

Annexure-J.

c) Pass such other orders / grant such other reliefs

as this Hon’ble Court deems fit in the facts and

circumstances of the case, interest of justice and

equity.

2.

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

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

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

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

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

frivolous and vexatious; otherwise tend to prejudice or

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

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

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

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

applications are supported by the affidavit of respondent

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

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

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

and vexatious; otherwise tend to prejudice or delay the fair

trial of the election petition. The necessary material facts

and material particulars required under Section 83 of the

R.P.Act, 1951 are conspicuously absent.

(ii)

The averments in Paragraph Nos.5 to 7 relate to

the

alleged

improper

acceptance

of

nomination

of

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

gist of the allegation is that the Returning Officer did not

invalidate the nomination paper and Form No.26 affidavit of

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

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

the Conduct of Election Rules, 1961 is not signed and

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

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

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

to that effect. The allegation that the petitioner pointed out

“infirmities” and “errors” in the certifying part of the

affidavit to the Returning Officer vide Annexure-C to the

election petition is liable to be struck off since the petitioner

has not pleaded or pointed out any defect of substantial

character rendering the averments vague, cryptic and bald.

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

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

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

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

to plead or aver a concise statement of material fact

regarding the date, time, place and persons involved in

commission of the alleged corrupt practice, being contrary

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

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

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

ingredients of any corrupt practice; and is therefore liable

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

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

proceedings pending on the file of the Principal Senior Civil

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

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

alleged corrupt practices committed by respondent No.4 on

02.05.2023 is liable to be struck off as vexatious, frivolous

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

concise

statement

of

material

facts

and

particulars

regarding date, time, place and persons involved in

commission of the alleged corrupt practice; being contrary

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

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

of election is materially affected by undue influence of

voters; who have allegedly cast votes in favour of

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

vexatious and bald since the petitioner has failed to plead

or aver the concise statement of material facts and

particulars regarding date, time, place and persons involved

in commission of the alleged corrupt practice.

(vi) The entire allegation contained in the election

petition do not meet the statutory requirement under the

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

off as frivolous, vexatious and unnecessary.

(vii) The averments in the petition does not disclose

the cause of action for presentation of election petition

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

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

petitioner must plead concise statements of material facts

on which he relies and set forth full particulars of any

corrupt practices and date and place of commission of such

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

1951.

3.

The petitioner has filed the statement of objections to

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

(i) The pleadings of the election petition reveals

material particulars as required under the provisions

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

Officer ought to have invalidated the nomination papers

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

the petitioner since the said affidavit filed by respondent

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

appended his signature on each and every page of the

affidavit except the last page. The fact that the objections

filed by the petitioner were not considered by the Returning

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

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

specifically pleaded in Paragraph Nos.8 to 11 which details

out the grounds for setting aside the election of respondent

No.4.

Respondent

No.4

has

committed

the

offences

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

1951 which include both cognizable and non-cognizable

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

allowed the criminal petition filed by respondent No.4 in

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

jurisdictional police to place the file at the hands of the

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

contended by respondent No.4. There is incriminating

video

graphic

evidence

against

respondent

No.4

for

promoting enmity between the classes which is the subject

matter of trial. The election petition contains all material

facts disclosing cause of action and material particulars

warranting

for

trial

for

respondent

No.4

for

having

committed the corrupt practice of undue influence and for

promoting enmity between the classes in terms of Sections

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

petition disclose the valid cause of action and complied with

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

these objections, counsel for the petitioner has prayed to

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

4.

Heard learned counsel for respondent No.4 and

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

2024.

5.

These applications are filed contending that the

averments in the petition are cryptic, bald and vague

and does not constitute the ground for declaring the

election of returning candidate as void. Learned counsel for

respondent No.4 would contend that the concise statement

of material facts as required are absent in the petition.

6.

The Hon’ble Apex Court in the case of Samant N

Balkrishna And Another vs. George Fernandez and

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

29. Having dealt with the substantive law on the

subject of election petitions we may now turn to

the procedural provisions in the Representation of

the Peoples Act. Here we have to consider Sections

81, 83 and 84 of the Act. The first provides the

procedure for the presentation of election petitions.

The proviso to sub-section alone is material here. It

provides that an election petition may be presented

on one or more of the grounds specified in sub-

section (1) of Section 100 and Section 101. That as

we have shown above creates the substantive

right. Section 83 then provides that the election-

petition must contain a concise statement of the

material facts on which the petitioner relies and

further that he must also set forth full particulars of

any corrupt practice that the petitioner alleges

including as full a statement as possible of the

names of the parties alleged to have committed

such corrupt practice and the date and place of the

commission of each such practice. The section is

mandatory and requires first a concise statement of

material facts and then requires the fullest possible

particulars. What is the difference between material

facts and particulars? The word "material" shows

that the facts necessary to formulate a complete

cause of action must be stated. Omission of a

single material fact leads to an incomplete cause of

action and the statement of claim becomes bad.

The function of particulars is to present as full a

picture of the cause of action with such further

information in detail as to make the opposite party

understand the case he will have to meet. There

may be some overlapping between material facts

and particulars but the two are quite distinct. Thus

material facts will mention that a statement of fact

(which must be set out) was made and it must be

alleged that it refers to the character and conduct

of the candidate that it is false or which the

returned candidate believes to be false or does not

believe to be true and that it is calculated to

prejudice the chances of the petitioner. In the

particulars the name of the person making the

statement, with the date, time and place will be

mentioned. The material facts thus will show the

ground of corrupt practice and the complete cause

of action and the particulars will give the necessary

information to present a full picture of the cause of

action. In stating the material facts it will not do

merely to quote the words of the section because

then the efficiency of the words "material facts" will

be lost. The fact which constitutes the corrupt

practice must be stated and the fact must be co-

related to one of the heads of corrupt practice. Just

as a plaint without disclosing a proper cause of

action cannot be said to be a good plaint, so also

an election petition without the material facts

relating to a corrupt practice is no election petition

at all. A petition which merely cites the sections

cannot be said to disclose a cause of action where

the allegation is the making of a false statement.

That statement must appear and the particulars

must be full as to the person making the statement

and

the

necessary

information.

Formerly

the

petition used to be in two parts. The material facts

had to be included in the petition and the

particulars in a schedule. It is inconceivable that a

petition could be filed without the material facts

and the schedule by merely citing the corrupt

practice from the statute. Indeed the penalty of

dismissal summarily was enjoined for petitions

which did not comply with the requirement. Today

the particulars need not be separately included in a

schedule but the distinction remains. The entire

and complete cause of action must be in the

petition in the

shape

of material

facts,

the

particulars

being

the

further

information

to

complete the picture. x x x x x x .”

7.

The Hon’ble Apex Court in the case of Anil Vasudev

Salgaonkar vs. Naresh Kushali Shigaonkar reported in

2009 (9) SCC 310 has observed thus;

49.

In this view of the matter, the court trying

the election petition can act in exercise of the

powers of the Code including Order 6 Rule 16 and

Order 7 Rule 11(a) of the Code. These provisions

are set out as under:

"16. Striking out pleadings.- The court may at

any stage of the proceedings order to be

struck out or amended any matter in any

pleading-

(a)

which

may

be

unnecessary,

scandalous, frivolous or vexatious, or

(b) which may tend to prejudice,

embarrass or delay the fair trial of the

suit, or

(c) which is otherwise an abuse of the

process of the court.

*

*

*

11. Rejection of plaint.- The plaint shall

be rejected in the following cases-

(a) where it does not disclose a cause

of action;"

50. The position is well settled that an election

petition can be summarily dismissed if it does not

furnish the cause of action in exercise of the power

under the Code of Civil Procedure. Appropriate

orders in exercise of powers under the Code can be

passed if the mandatory requirements enjoined by

Section 83 of the Act to incorporate the material

facts in the election petition are not complied with.

51. This Court in Samant N. Balkrishna case has

expressed itself in no uncertain terms that the

omission of a single material fact would lead to an

incomplete cause of action and that an election

petition without the material facts relating to a

corrupt practice is not an election petition at all. In

Udhav Singh v. Madhav Rao Scindia the law has

been enunciated that all the primary facts which

must be proved by a party to establish a cause of

action or his defence are material facts. In the

context of a charge of corrupt practice it would

mean that the basic facts which constitute the

ingredients of the particular corrupt practice alleged

by the petitioner must be specified in order to

succeed on the charge. Whether in an election

petition a particular fact is material or not and as

such required to be pleaded is dependent on the

nature of the charge levelled and the circumstances

of the case. All the facts which are essential to

clothe the petition with complete cause of action

must be pleaded and failure to plead even a single

material fact would amount to disobedience of the

mandate of Section 83(1)(a). An election petition

therefore can be and must be dismissed if it suffers

from any such vice. The first ground of challenge

must therefore fail.

57. It is settled legal position that all "material

facts" must be pleaded by the party in support of

the case set up by him within the period of

limitation. Since the object and purpose is to

enable the opposite party to know the case he has

to meet with, in the absence of pleading, a party

cannot be allowed to lead evidence. Failure to state

even a single material fact will entail dismissal of

the election petition. The election petition must

contain a concise statement of “material facts” on

which the petitioner relies.”

8.

The Hon’ble Apex Court in the case of Kanimozhi

Karunanidhi

vs.

A

Santhana

Kumar

and

Others

reported in 2023 SCC Online 573 has observed thus;

28.

The legal position enunciated in aforestated

cases may be summed up as under:-

i. Section 83(1)(a) of RP Act, 1951 mandates that

an

Election

petition

shall

contain

a

concise

statement of material facts on which the petitioner

relies. If material facts are not stated in an Election

petition, the same is liable to be dismissed on that

ground alone, as the case would be covered by

Clause (a) of Rule 11 of Order 7 of the Code.

ii. The material facts must be such facts as would

afford a basis for the allegations made in the

petition and would constitute the cause of action,

that is every fact which it would be necessary for

the plaintiff/petitioner to prove, if traversed in

order to support his right to the judgment of court.

Omission of a single material fact would lead to an

incomplete cause of action and the statement of

plaint would become bad.