(1)
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PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS)
NOTIFICATION
No. DPAR 24 CHUTHAA 2025, Bengaluru, Dated: 8th December 2025.
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi.
Dated: 2nd September, 2025
11 Bhadra, 1947 (Saka)
NOTIFICATION
No. 82/KT-HP/4/2024:-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 (Bengaluru Bench) dated : 7th July, 2025 in
Election Petition No. 4/2024.
¨sÁUÀ – 4J
Part – IVA
08
, 2025 (
, 17,
, ೧೯೪7)
BENGALURU, MONDAY 08, DECEMBER, 2025 (MARGASHIRA, 17, SHAKAVARSHA, 1947)
. 791
No. 791
2
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 M G
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:
3
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 16Hassan 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. * 33¼ 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
4
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
respondentappeared 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. Thepetitioner has filed an affidavit in reply, opposing
the said application.
7.
The application is called out for hearing.
8. Sri. PrabhulingNavadagi, 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
5
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) wherenon compliance with the provision of the Act or Election Rules has not been
borne out by the pleadings in the Election Petition.
9.
Sri PrabhulingNavadagi, 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
PrabhulingNavadagi 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. NuneyTayang and another,
reported in AIR 2024
SUPREME COURT 2121
iv.
Tek Chand V.Dile Ram reported in
(2001) 3 Supreme Court Cases 290
6
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
PukhremSharatchandra 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 H D Ranganath and ors
in EP 11/2023 – decided on
21.06.24
7
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
8
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 YumkhamErabot
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.
PukhremSharatchandra 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;
9
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 from No-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
10
(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;
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of
corrupt practices at the election; and
(d) 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
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(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 selfcontained
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
12
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
13
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
14
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
15
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
16
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
17
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
18
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 YumkhamErabot 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
19
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
20
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. PukhremSharatchandra
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
21
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
22
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. PrabhulingNavadagi, 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
ofKarikho
Kri V.
NuneyTayang and
another
reported in
AIR 2024
23
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.
24
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
25
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
26
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/-
(ASHOK S.KINAGI)
By Order,
(PAWAN DIWAN)
SECRETARY
ELECTION COMMISSION OF INDIA
By order and in the name of the
Governor of Karnataka
( MADHU A.C )
Under Secretary to Government
D.P.A.R (Elections)
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