Supreme Court of India
KARIM UDDIN BARBHUIYAversusAMINUL HAQUE LASKAR & ORS.
- Citation
- 2024 INSC 282
- Decided
- 8 April 2024
- Disposal
- Case Allowed
- Bench
- ANIRUDDHA BOSE
Holding
An election petition that fails to comply with the pleading requirements of Sections 83(1)(a) and (b) of the Representation of the People Act, 1951, must be dismissed under Order VII Rule 11 CPC, and the appeal is allowed.
Summary
The appellant, Karim Uddin Barbhuiya, contested the dismissal of his application under Order VII Rule 11 CPC seeking rejection of an election petition filed by Aminul Haque Laskar alleging false statements in the appellant's nomination affidavit and improper acceptance of his nomination. The Supreme Court examined whether the election petition complied with the mandatory pleading requirements of Sections 81 and 83 of the Representation of the People Act, 1951, particularly the need to state a concise statement of material facts and full particulars of any alleged corrupt practice. It held that the petition contained only vague, unspecific allegations and omitted essential material facts, thereby failing to establish a complete cause of action under Section 100 of the Act. Consequently, the petition was liable to be dismissed under Order VII Rule 11 CPC read with Sections 83 and 87 of the RP Act. The Court allowed the appeal, setting aside the High Court’s order and dismissing the election petition.
Issues considered
- Whether an election petition that does not plead material facts and full particulars as required by Section 83 of the Representation of the People Act, 1951, is liable to be rejected under Order VII Rule 11 of the CPC.
- Whether the allegations of corrupt practice (undue influence) and improper acceptance of nomination, without specific particulars, satisfy the grounds under Section 100 of the RP Act.
- Whether the High Court erred in refusing to dismiss the election petition on the basis of non‑compliance with the RP Act.
Legislation cited
- Code of Civil Procedure, 1908s. Order VII Rule 11
- Conduct of Election Rules, 1961s. Rule 4A
- Representation of the People Act, 1951s. 100, s. 123, s. 33, s. 33A, s. 36, s. 81, s. 83, s. 87
Subjects
Corrupt practiceUndue influenceImproper acceptance of nominationMaterial facts not pleaded in election petitionIncomplete cause of actionRejection of election petition
Judgment
[2024] 4 S.C.R. 523 : 2024 INSC 282
Karim Uddin Barbhuiya
v.
Aminul Haque Laskar & Ors.
(Civil Appeal No. 6282 of 2023)
08 April 2024
[Aniruddha Bose and Bela M. Trivedi*, JJ.]
Issue for Consideration
Whether an election petition alleging corrupt practice in the nature
of undue influence and alleging improper acceptance of nomination
is to be rejected under Order VII Rule 11 CPC when material facts
as required under s. 83 of the Representation of People Act, 1951
(RP Act) are not pleaded and where no grounds as contemplated
under s. 100 RP Act are made out.
Headnotes
Representation of People Act, 1951 – Election petition filed
under ss. 100(1)(b) and 100(1)(d)(i) RP Act to declare election
of Appellant void – Allegation raised regarding false statement,
suppression and misrepresentation of facts regarding
educational qualification and suppression of fact regarding
financial liability – Same amounting to corrupt practice u/s.
100(1)(b) RP Act – Further alleging improper acceptance of
nomination u/s. 100(1)(d)(i) RP Act – Application filed by
Appellant under Order VII Rule 11 CPC r/w s. 87 RP Act for
rejection of petition – High Court dismissed said application.
Held: RP Act is self-contained code – Any rights claimed in
relation to election, election dispute must be found therein – If
allegations in petition do not set out grounds contemplated by
s. 100 RP Act and do not conform to requirement of ss. 81 and
83 RP Act, election petition liable to be rejected under Order VII
Rule 11 CPC – Pleadings to be precise, specific, unambiguous
– Material facts to be pleaded to show cause of action – When
alleging corrupt practice in nature of undue influence, pleadings
must state full particulars as required u/s. 83(1)(b) RP Act regarding
direct or indirect interference or attempt to interfere by candidate,
with free exercise of electoral right as required u/s. 123(2) RP Act
– When alleging improper acceptance of nomination, particulars
showing how such improper acceptance materially affected result
* Author
524 [2024] 4 S.C.R.
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of election must be present – Omission of single material fact
leading to incomplete cause of action would entail rejection of
election petition under Order VII Rule 11 CPC r/w ss. 83 and 87
RP Act. [Paras 12-15, 19-24]
Case Law Cited
Bhagwati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi
[1986] 2 SCR 823 : [1986] 4 SCC 78; Dhartipakar
Madan Lal Agarwal v. Rajiv Gandhi [1987] 3 SCR
369 : [1987] Supp SCC 93; Laxmi Narayan Nayak
v. Ramratan Chaturvedi & Ors [1989] Supp. 2 SCR
581 : [1990] 2 SCC 173; Kanimozhi Karunanidhi v.
A. Santhana Kumar & Ors [2023] 4 SCR 798 : 2023
SCC Online SC 573; Azhar Hussain v. Rajiv Gandh
[1986] 2 SCR 782 : [1986] Supp. SCC 315; Samant N.
Balkrishna & Anr. v. George Fernandez & Ors. [1969]
3 SCR 603 : [1969] 3 SCC 238; Shri Udhav Singh v.
Madhav Rao Scindia [1976] 2 SCR 246 : [1977] 1 SCC
511 - relied on.
List of Acts
The Representation of the People’s Act, 1951; The Conduct of
Election Rules, 1961; Code of Civil Procedure, 1908.
List of Keywords
Corrupt practice; Undue influence; Improper acceptance of
nomination; Material facts not pleaded in election petition;
Incomplete cause of action; Rejection of election petition.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6282 of 2023
From the Judgment and Order dated 26.04.2023 of the Gauhati High
Court in IA(C) No. 1278 of 2021
Appearances for Parties
Kapil Sibal, Dr. Menaka Guruswamy, Sr. Advs., Fuzail Ahmad Ayyubi,
Mustafa Khaddam Hussain, Mohammad Nizamuddin Pasha, Ms.
Rupali Samuel, Ibad Mushtaq, Ms. Akanksha Rai, Utkarsh Pratap,
Lavkesh Bhambhani, Harshvardhan Thakur, Ms. Gurneet Kaur, Advs.
for the Appellant.
[2024] 4 S.C.R. 525
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
Jaideep Gupta, Dilip Majumder, Sr. Advs., Adeel Ahmed, Abdur
Razzaque Bhuyan, Ms. Racheeta Chawla, Ms. Sana Parveen, Ms.
Anupama Gupta, Ms. Riya Dutta, Piyush Sachdeva, Md Gouse
Muddin Khan, Raja Chatterjee, Abhaya Nath Das, Yogendra Kumar
Verma, B C Bhatt, Ms. Beena, Budha Deo Prasad, Sandeep Kumar,
V K Shukla, Mrs. Leelawati Suman, Satish Kumar, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Bela M. Trivedi, J.
1. The instant Appeal filed by the appellant - Karim Uddin Barbhuiya
(Original Respondent No. 1) is directed against the impugned
judgment and order dated 26.04.2023 passed by the Gauhati High
Court at Guwahati in I.A. (Civil) No. 1278 of 2021 in Election Petition
No. 01 of 2021, whereby the High Court has dismissed the said IA
filed by the present appellant under Order VII Rule 11 CPC seeking
rejection of the Election Petition filed by the respondent No. 1 - Aminul
Haque Laskar (Original Election Petitioner).
2. A brief conspectus of relevant facts may be stated as under:
(i) On 05.03.2021, General Election to the Legislative Assembly
of Assam was notified by the Election Commission of India,
whereunder the last date for filing of nomination papers was
12.03.2021.
(ii) On 11.03.2021, the appellant filed his nomination papers as a
candidate of All India United Democratic Front (AIUDF) along
with the Declaration, by way of an affidavit in Form-26 of The
Conduct of Election Rules, 1961 (hereinafter referred to as
the Said Rules). The last date for scrutiny of nomination papers
was 15.03.2021.
(iii) On 01.04.2021, the election for the Legislative Assembly
Constituency no. 10, Sonai was concluded and the appellant
secured 71,937 votes out of total votes polled, while the
respondent no. 1 herein secured 52,283 votes in his favour.
(iv) On 04.06.2021, the respondent no. 1 (Election Petitioner) filed
the Election Petition being no. 01 of 2021 before the High
526 [2024] 4 S.C.R.
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Court under Section 100(1)(b) and Section 100(1)(d)(i) of The
Representation of the People’s Act, 1951 (hereinafter referred
to as the RP Act) questioning the election of the appellant, mainly
making four allegations - (a) false declaration of educational
qualification of B.A. (b) suppression of the educational
qualification of Diploma in Engineering (c) suppression of bank
loan details of M/s. Allied Concern and (d) suppression of un-
liquidated provident fund dues.
(v) On 24.06.2021, the High Court issued notice in the said Election
Petition.
(vi) On 23.08.2021, the appellant herein (Original Respondent
No.1-Returned Candidate) filed an application under Order VII
Rule 11, CPC read with Section 86 of the RP Act for rejection
of the Election Petition, which was registered as I.A (Civil) No.
1278 of 2021 in the said Election Petition.
(vii) On 26.04.2023, the High Court passed the impugned judgment
dismissing the said I.A. filed by the appellant. Hence, the present
Appeal has been filed.
3. The Appeal has been contested by the respondent no. 1 and the
respondent no. 13 by filing their respective counter affidavits.
4. We have heard the learned Senior Counsel Mr. Kapil Sibal for the
appellant and Mr. Jaideep Gupta for the respondent no.1 at length.
5. Learned Senior Advocate Mr. Kapil Sibal appearing for the appellant
vehemently submitted that the respondent no. 1 has sought to upset
the election results by filing the baseless, motivated and malafide
election petition, based on mere bald allegations that the information
disclosed in Form No. 26 filed by the appellant along with his
nomination form was inaccurate. None of the allegations made in
the Election Petition is supported by either primary documents or
reliable source of information. The pleadings in the Election Petition
are not the averments of material facts but are facts based speculation
and do not disclose any triable issue. He further submitted that the
Election Petition does not disclose a complete cause of action, nor
does it contain all “material facts” as required under Section 83(1)
(a) and also does not plead “full particulars” of the alleged corrupt
practice of undue influence, as required under Section 81(1)(b) of
the RP Act.
[2024] 4 S.C.R. 527
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
6. Mr. Sibal taking us to the particulars disclosed by the appellant
in Form No. 26 submitted that there was neither suppression of
educational qualification nor suppression of bank loan details or
of un-liquidated provident fund dues, as alleged by the respondent
no.1. He further submitted that the respondent no. 1 had admittedly
not raised any objection in writing at the time of scrutiny of the
nomination papers by the Returning Officer, and therefore it could
not be said that there was improper acceptance of nomination of the
appellant. He pressed into service various provisions contained in
the RP Act, particularly Section 100 and Section 123 to submit that
the allegations and averments made in the Election Petition could
never constitute “undue influence” much less “corrupt practices” as
contemplated in Section 123, for declaring the Election to be void
under Section 100 of the RP Act. Much reliance has been placed by
him on the decision of this court in case of Kanimozhi Karunanidhi
Vs. A. Santhana Kumar and Others1 to submit that the Election
Petition filed by the respondent no. 1 be dismissed at the threshold
under Order VII Rule 11, CPC read with Section 83 of the RP Act.
7. The learned Senior Advocate Mr. Jaideep Gupta per contra submitted
that the election of the appellant is liable to be set aside firstly on the
ground that the nomination paper of the appellant was improperly
accepted, as the affidavit in the Form-26 filed by the appellant
along with his nomination paper, contained false statements with
regard to his educational qualification and his liability in respect of
the loan and his default in the deposit of employer’s contribution
of provident fund as the partner of the Partnership firm. He further
submitted that the election is also liable to be set aside on the
ground of the appellant having indulged into corrupt practices, he
having failed to make the disclosures as required by the RP Act
and by the judicial pronouncements by this Court. According to him,
the RP Act was amended with effect from 24.08.2002 incorporating
therein Section 33A in the RP Act and incorporating Rule 4A in
the Conduct of Election Rules, 1961 with effect from 03.09.2002,
prescribing the form of affidavit to be filed by the candidate at the
time of delivering the nomination paper in Form-26 to the said
Rules. In Lok Prahari vs. Union of India & Others2, this Court
1 [2023] 4 SCR 798 : 2023 SCC Online SC 573
2 (2018) 4 SCC 699
528 [2024] 4 S.C.R.
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has held that non-disclosure would amount to “undue influence”
as defined in the RP Act. Further relying on the decision in case of
Krishnamoorthy vs. Sivakumar and Others3, he submitted that
if the “corrupt practice” is alleged under Section 100(1)(b), it is not
necessary to state that the “corrupt practice” has materially affected
the outcome of the election. Lastly, he submitted that there are
number of triable issues involved in the Election Petition, and the
cause of action also having been disclosed in the Election Petition,
the High Court has rightly rejected the application of the appellant
under Order VII Rule 11, CPC, which order being just and legal,
this Court may not interfere with the same.
8. Before adverting to the rival contentions raised by the learned counsel
for the parties, let us glance over the relevant provisions of the RP
Act. Part-V of the RP Act deals with the Conduct of Elections, and
Chapter-I thereof deals with the Nomination of Candidates. Section
33A contained in the said Chapter pertains to the obligation of the
candidate to furnish the information as stated therein, and Section
36 thereof pertains to the scrutiny of nominations. Rule 4A of the
said Rules requires the candidate or his proposer, as the case may
be, to file an affidavit in Form-26 at the time of delivering nomination
paper. The said rule 4A reads as under:
“4A. Form of affidavit to be filed at the time of delivering
nomination paper. — The candidate or his proposer, as
the case may be, shall, at the time of delivering to the
returning officer the nomination paper under sub-section
(1) of section 33 of the Act, also deliver to him an affidavit
sworn by the candidate before a Magistrate of the first
class or a Notary in Form 26.”
9. Section 80 of the RP Act states that no election shall be called in
question except by an Election Petition presented in accordance with
the provisions of Part-VI. Section 81 pertains to the presentation of
the Election Petition. Section 82 pertains to the parties to the Election
Petition. Section 83 pertaining to the contents of the Election Petition,
being relevant for the purposes of this appeal, it is reproduced as
under: -
3 (2015) 3 SCC 467
[2024] 4 S.C.R. 529
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
“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.”
10. Section 87 lays down the procedure to be followed before the High
Court, which inter alia states that subject to the provisions of the
RP Act and of any Rules made thereunder, every Election Petition
shall be tried by the High Court, as nearly as may be, in accordance
with procedure applicable under the Code of Civil Procedure, 1908.
Section 100 deals with the grounds for declaring the election to be
void, which reads as under: -
“100. Grounds for declaring election to be void. —
(1) Subject to the provisions of sub-section (2) if the
High court is of opinion—
(a) 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 5 [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
530 [2024] 4 S.C.R.
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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 6 [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 without the consent, of
the candidate or his election agent;
- Clause (b) omitted by Act 58 of 1958, s. 30 (w.e.f.
30-12-1958).
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of
corrupt practices at the election; and
[2024] 4 S.C.R. 531
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
(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.”
11. Section 123 deals with the “Corrupt Practices”, which covers the
“undue influence” as the corrupt practice for the purposes of the RP
Act. The relevant part of Section 123 reads as under: -
“123. Corrupt practices. —The following shall be deemed
to be corrupt practices for the purposes of this Act: —
(1) ….
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the
candidate or his agent, or of any other person 7 [with
the consent of the candidate or his election agent],
with the free exercise of any electoral right:
Provided that—
(a) without prejudice to the generality of the
provisions of this clause any such person as is
referred to therein who—
(i) threatens any candidate or any elector,
or any person in whom a candidate or
an elector is interested, with injury of
any kind including social ostracism and
ex-communication or expulsion from any
caste or community; or
(ii) induces or attempts to induce a candidate
or an elector to believe that he, or any
person in whom he is interested, will
become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning
of this clause;
(b) a declaration of public policy, or a promise of
public action, or the mere exercise of a legal
532 [2024] 4 S.C.R.
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right without intent to interfere with an electoral
right, shall not be deemed to be interference
within the meaning of this clause.
(3) to (8) ……….”
12. At the outset, it may be noted that as per the well settled legal position,
right to contest election or to question the election by means of an
Election Petition is neither common law nor fundamental right. It is
a statutory right governed by the statutory provisions of the RP Act.
Outside the statutory provisions, there is no right to dispute an election.
The RP Act is a complete and self-contained code within which any
rights claimed in relation to an election or an election dispute must
be found. The provisions of Civil Procedure Code are applicable to
the extent as permissible under Section 87 of the RP Act.
13. It hardly needs to be reiterated that in an Election Petition,
pleadings have to be precise, specific and unambiguous, and
if the Election Petition does not disclose a cause of action, it is
liable to be dismissed in limine. It may also be noted that the
cause of action in questioning the validity of election must relate
to the grounds specified in Section 100 of the RP Act. As held
in Bhagwati Prasad Dixit ‘Ghorewala’ vs. Rajeev Gandhi4 and
in Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi5, if the
allegations contained in the petition do not set out the grounds as
contemplated by Section 100 and do not conform to the requirement
of Section 81 and 83 of the Act, the pleadings are liable to be
struck off and the Election Petition is liable to be rejected under
Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan
Nayak vs. Ramratan Chaturvedi and Others6 be also made, wherein
this Court upon review of the earlier decisions, laid down following
principles applicable to election cases involving corrupt practices: -
“5. This Court in a catena of decisions has laid down the
principles as to the nature of pleadings in election cases,
the sum and substance of which being:
4 [1986] 2 SCR 823 : (1986) 4 SCC 78
5 [1987] 3 SCR 369 : (1987) Supp SCC 93
6 [1989] Supp. 2 SCR 581 : (1990) 2 SCC 173
[2024] 4 S.C.R. 533
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
(1) The pleadings of the election petitioner in his
petition should be absolutely precise and clear
containing all necessary details and particulars
as required by law vide Dhartipakar Madan Lal
Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] and
Kona Prabhakara Rao v. M. Seshagiri Rao [(1982)
1 SCC 442] .
(2) The allegations in the election petition should not be
vague, general in nature or lacking of materials or
frivolous or vexatious because the court is empowered
at any stage of the proceedings to strike down or
delete pleadings which are suffering from such vices
as not raising any triable issue vide Manphul Singh v.
Surinder Singh [(1973) 2 SCC 599: (1974) 1 SCR 52],
Kona Prabhakara Rao v. M. Seshagiri Rao [(1982)
1 SCC 442] and Dhartipakar Madan Lal Agarwal v.
Rajiv Gandhi [1987 Supp SCC 93] .
(3) The evidence adduced in support of the pleadings
should be of such nature leading to an irresistible
conclusion or unimpeachable result that the allegations
made, have been committed rendering the election
void under Section 100 vide Jumuna Prasad
Mukhariya v. Lachhi Ram [(1955) 1 SCR 608 : AIR
1954 SC 686] and Rahim Khan v. Khurshid Ahmed
[(1974) 2 SCC 660] .
(4) The evidence produced before the court in support
of the pleadings must be clear, cogent, satisfactory,
credible and positive and also should stand the test
of strict and scrupulous scrutiny vide Ram Sharan
Yadav v. Thakur Muneshwar Nath Singh [(1984) 4
SCC 649] .
(5) It is unsafe in an election case to accept oral evidence
at its face value without looking for assurances
for some surer circumstances or unimpeachable
documents vide Rahim Khan v. Khurshid Ahmed
[(1974) 2 SCC 660] , M. Narayana Rao v. G. Venkata
Reddy [(1977) 1 SCC 771: (1977) 1 SCR 490] ,
Lakshmi Raman Acharya v. Chandan Singh [(1977)
534 [2024] 4 S.C.R.
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1 SCC 423: (1977) 2 SCR 412] and Ramji Prasad
Singh v. Ram Bilas Jha [(1977) 1 SCC 260] .
(6) The onus of proof of the allegations made in the
election petition is undoubtedly on the person who
assails an election which has been concluded vide
Rahim Khan v. Khurshid Ahmed [(1974) 2 SCC 660],
Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12 : AIR
1964 SC 1366] and Ramji Prasad Singh v. Ram Bilas
Jha [(1977) 1 SCC 260].”
15. The legal position with regard to the non-compliance of the requirement
of Section 83(1)(a) of the RP Act and the rejection of Election Petition
under Order VII Rule 11, CPC has also been regurgitated recently
by this Court in case of Kanimozhi Karunanidhi vs. A. Santhana
Kumar and Others (supra): -
“28. The legal position enunciated in afore-stated 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.
iii. Material facts mean 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 RP Act, the Election
[2024] 4 S.C.R. 535
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
petitioner must aver that on 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 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 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 CPC read with the mandatory requirements
enjoined by Section 83 of the RP Act.”
16. Bearing in mind the aforestated legal position, let us consider the
averments and allegations made by the respondent no. 1 in the
Election Petition in which the election of the Appellant is sought to
be challenged basically on two grounds: (1) that the appellant has
committed corrupt practice and (2) the result of the election in so
far as it concerned the appellant, was materially affected by the
improper acceptance of his nomination. In short, the respondent no.
1 has invoked Section 100(1)(b) and Section 100(1)(d)(i) of the Act,
for declaring the election of the Appellant as void.
17. As transpiring from the Election Petition, the respondent no.1
along with 13 other candidates including the present appellant had
submitted their nomination papers for LA - 10 Sonai LAC, however
according to the respondent no. 1, the affidavit in Form 26 filed by the
appellant along with his nomination paper was invalid and defective
as the same contained false statements, and suppression and
misrepresentation of facts with regard to the educational qualification
and suppression of facts with regard to his liability in respect of
the loan availed by him by way of a Cash Credit Limit (CCL) for
a partnership firm namely M/s. Allied Concern of which he was an
active partner, and suppression of facts with regard to his default
in deposit of employer’s contribution of provident fund in respect of
536 [2024] 4 S.C.R.
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the employees of the said M/s. Allied Concern. As regards the false
claim of educational qualification, the respondent no.1 has alleged
in the Election petition inter alia that the appellant had mentioned in
Column no. 9 of his affidavit in Form 26 appended to his nomination
paper that his educational qualification was Bachelor of Arts (B.A.)
which he passed from Chaudhary Charan Singh University, Meerut
in Uttar Pradesh in the year 2019, but the appellant had never
passed B.A. from the said University or from any other Institution
or University. It is further alleged in the Election petition that the
appellant did not mention about his so-called technical qualification
of diploma in Civil Engineering in the nomination paper, which he
had mentioned in the affidavit in Form 26 when he contested 2016
General Election. The respondent no. 1 has also alleged that though
the appellant was a partner in M/s. Allied Concern, which availed
a loan from United Bank of India (PNB), Tarapur Branch at Silchar,
the appellant had deliberately suppressed the details of the CC
Limit Loan Account with the said bank and also the defaults made in
repayment of the said loan. The respondent no. 1 has also alleged
that the appellant had deliberately not mentioned about the liabilities
of the appellant as the partner of M/s. Allied Concern with regard
to the employer’s contribution of provident fund for its employees.
According to the respondent no. 1 he had raised an objection before
the returning officer on the date of scrutiny that is on 15.03.2021 that
the appellant did not possess the educational qualification of B.A.
from Chaudhary Charan Singh University, Meerut and therefore his
nomination paper was liable to be rejected. According to him, another
independent candidate Karim Uddin Barbhuiya, (the respondent no.
8 in the Election petition) had also raised an objection by submitting
a written complaint dated 15.03.2021 before the returning officer,
however the returning officer had failed to exercise his jurisdiction
and authority under Section 36 of the RP Act and refused to make
even a summary enquiry by calling upon the appellant to meet with
the objections raised by him. Thus, according to the respondent no.
1, there was an improper acceptance of the nomination paper of
the appellant. He also alleged that the misrepresentation and false
representation of educational qualification by the appellant in the
affidavit in Form 26 and suppression and misrepresentation of the
liability of the appellant in the said affidavit in respect of the cash credit
facility, and non-disclosure of the default of the appellant in respect
of his liabilities towards employer’s contribution to the provident fund
[2024] 4 S.C.R. 537
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
tantamount to commission of “Corrupt practice” of undue influence
within the meaning of Section 123(2) of the RP Act. The respondent
no. 1 therefore has filed the Election Petition under Section 100 of
the Act seeking declaration that the election of the appellant - the
returned candidate, was void.
18. The appellant, who is respondent no. 1 in the Election petition
before the High Court, had submitted an I.A. being no. 1278 of 2021
seeking rejection of the Election petition under Order VII Rule 11 of
CPC read with Section 87 of the RP Act. It was contended by the
appellant in the said application that the paragraphs alleging “Corrupt
practices” of undue influence contained in the Election petition do
not constitute “material facts” of alleged Corrupt practices so as to
give rise to a cause of action for filing the Election Petition. None
of the statements made in the various paragraphs of the Election
petition could be said to be a Concise statement of “material facts”
or “material particulars” to give rise to a cause of action with triable
issues on falsity in nomination papers, improper acceptance of
nomination paper and commission of corrupt practice.
19. Now, from the bare reading of the Election petition, it emerges that
the respondent no. 1 has made only bald and vague allegations
in the Election Petition without stating the material facts in support
thereof as required to be stated under Section 83(1)(a) of the RP
Act. Apart from the fact that none of the allegations with regard to
the false statements, and suppression and misrepresentation of
facts allegedly made by the respondent no. 1 with regard to his
educational qualification or with regard to his liability in respect of
the loan availed by him for his partnership firm or with regard to his
default in depositing the employer’s contribution to provident fund,
would fall within the definition of “Corrupt practice” of “undue influence”
as envisaged in Section 123(2) of the RP Act, the Election petition
also lacks concise statement of “material facts” as contemplated
in Section 83(a), and lacks “full particulars” of the alleged Corrupt
practice as contemplated in Section 83(b) of the RP Act.
20. So far as the allegations of “Corrupt practice” are concerned, the
respondent no. 1 was required to make concise statement of material
facts as to how the appellant had indulged into “Corrupt practice”
of undue influence by directly or indirectly interfering or attempted
to interfere with the free exercise of any electoral right. Mere bald
538 [2024] 4 S.C.R.
Digital Supreme Court Reports
and vague allegations without any basis would not be sufficient
compliance of the requirement of making a concise statement of
the “material facts” in the Election Petition. The material facts which
are primary and basic facts have to be pleaded in support of the
case set up by the Election petitioner to show his cause of action.
Any 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 CPC read with
Section 83(1)(a) of the RP Act. The said legal position has been well
settled by this Court in Azhar Hussain vs. Rajiv Gandhi7, wherein
this Court after referring to the earlier pronouncements in Samant
N. Balkrishna and Another vs. George Fernandez and Others8
and Shri Udhav Singh vs. Madhav Rao Scindia9, observed that
the omission of a single material fact would lead to incomplete cause
of action, and that an Election petition without the material facts is
not an Election petition at all. It was further held that all the facts
which are essential to clothe the petition with complete cause of
action must be pleaded and omission of even a single material fact
would amount to disobedience of the mandate of Section 83(1)(a)
of the Act and an Election petition can be and must be dismissed,
if it suffers from any such vice.
21. It is also pertinent to note at this juncture that a charge of “Corrupt
practice” is easy to level but difficult to prove because it is in the
nature of criminal charge and has got to be proved beyond doubt.
The standard of proof required for establishing a charge of “Corrupt
practice” is the same as is applicable to a criminal charge. Therefore,
Section 83(1)(b) mandates that when the allegation of “Corrupt
practice” is made, the Election Petition shall set forth full particulars
of the corrupt practice that the Election Petitioner alleges, including
as full a statement as possible of the names of parties alleged to
have committed such corrupt practice and the date and place of
the commission of each such practice. The pleadings with regard
to the allegation of corrupt practice have to be precise, specific and
unambiguous whether it is bribery or undue influence or other corrupt
practices as stated in Section 123 of the Act. If it is corrupt practice
7 [1986] 2 SCR 782 : (1986) Supp. SCC 315
8 [1969] 3 SCR 603 : (1969) 3 SCC 238
9 [1976] 2 SCR 246 : (1977) 1 SCC 511
[2024] 4 S.C.R. 539
Karim Uddin Barbhuiya v. Aminul Haque Laskar & Ors.
in the nature of undue influence, the pleadings must state the full
particulars with regard to the direct or indirect interference or attempt
to interfere by the candidate, with the free exercise of any electoral
right as stated in Section 123(2) of the Act. We are afraid, Mr. Gupta
has failed to point out from the pleadings of the Election petition as
to how the appellant had interfered or attempted to interfere with
the free exercise of any electoral right so as to constitute “undue
influence” under Section 123(2) of the Act.
22. So far as the ground contained in clause (d) of Section 100(1) of
the Act, with regard to improper acceptance of the nomination of
the Appellant is concerned, there is not a single averment made in
the Election Petition as to how the result of the election, in so far as
the appellant was concerned, was materially affected by improper
acceptance of his nomination, so as to constitute a cause of action
under Section 100(1)(d)(i) of the Act. 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.
23. As transpiring from the Election Petition, the respondent no. 1 himself
had not raised any objection in writing against the nomination filed
by the Appellant, at the time of scrutiny made by the Returning
Officer under Section 36 of the Act. According to him, he had raised
oral objection with regard to the education qualification stated by
the Appellant in the Affidavit in Form-26. If he could make oral
objection, he could as well, have made objection in writing against
the acceptance of nomination of the Appellant, and in that case
the Returning Officer would have decided his objection under sub-
section (2) of Section 36, after holding a summary inquiry. Even if
it is accepted that he had raised an oral objection with regard to
the educational qualification of the Appellant before the Returning
Officer at the time of scrutiny, the respondent no. 1 has failed
to make averment in the Election Petition as to how Appellant’s
nomination was liable to be rejected by the Returning Officer on
the grounds mentioned in Section 36(2) of the Act, so as to make
his case fall under clause (d)(i) of Section 100(1) that there was
improper acceptance of the nomination of the Appellant. The non-
mentioning of the particulars as to how such improper acceptance
540 [2024] 4 S.C.R.
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of nomination had materially affected the result of the election, is
apparent on the face of the Election Petition.
24. As stated earlier, 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 Section 83 and 87 of the
RP Act.
25. In that view of the matter, we are of the opinion that the Election
Petition being No. 1 of 2021 filed by the Respondent No. 1 (Election
Petitioner) before the High Court deserves to be dismissed and is
accordingly dismissed.
26. The Appeal stands allowed accordingly.
Headnotes prepared by: Result of the case:
Aandrita Deb, Hony. Associate Editor Appeal allowed.
(Verified by: Liz Mathew, Sr. Adv.)
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