No Acts & Articles mentioned in this case
5.EP.36.2025.doc
Ajay
ININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTIONORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO. 36 OF 2025
Mr. Ganesh Kumar Yadav ..Petitioner
Versus
Capt. R. Tamil Selvan and Ors. ..Respondents
WITH
APPLICATION NO. 10 OF 2025
IN
ELECTION PETITION NO. 36 OF 2025
Capt. R. Tamil Selvan
..
Applicant
(Orig. Respondent No.1)
IN THE MATTER OF:
Mr. Ganesh Kumar Yadav ..Petitioner
Versus
Capt. R. Tamil Selvan and Ors. ..Respondents
....................
Mr. Premlal Krishnan a/w. Mr. Nadeem Sharma, Mr. Hrishikesh
Nadkarni, Mr. Kailash Tiwari, Mr. Salman Atharia and Mr. Abuzar
Khan, Advocates i/by Pan India Legal Services LLP for Petitioner.
Dr. Veerendra Tulzapurkar, Senior Advocate a/w. Mr. Mandar
Soman and Mr. Shailesh Shukla, Advocates i/by Shailesh H. Shukla
& H. Vaidyanathan Associates for Respondent No.1 in Election
Petition and for Applicant in Application No.10 of 2025.
......…...........
CORAM :MILIND N. JADHAV, J.
DATE :AUGUST 18, 2025.
JUDGEMENT:
1. Heard Mr. Krishnan, learned Advocate for Petitioner and Dr.
Tulzapurkar, learned Senior Advocate for Respondent No.1 in Election
Petition and for Applicant in Application No.10 of 2025.
2. Election Petition No.36 of 2025 is filed by Mr. Ganesh Kumar
Yadav on 30
th
December, 2024. It challenges election of Respondent
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No.1 to the General Election from 179 Sion – Koliwada Constituency
held on 20.11.2024 as void under provisions of Section 100(1)(d)(iv)
of the Representation of the People’s Act 1951 (for short ‘RP Act’) and
for issuance of directions for initiation of proceedings under Section
125A of the RP Act.
3. Application No.10 of 2025 is filed by Respondent No.1 -
Capt. R. Tamil Selvan for dismissal of Election Petition under Section
86 of the RP Act read with Order VII Rule 11 of the Code of Civil
Procedure, 1908 (for short ‘CPC’). Respondent No.1 is the returned
candidate / elected candidate in the Elections under challenge.
4. Brief facts leading to filing of the Election Petition are as
follows:-
Election Commission announced schedule for 2024 General Elections
to the Legislative Assembly of the State of Maharashtra as under:-
Schedule Date
Date of Issue of Gazette
Notification
22.10.2024 (Tuesday)
Last Date of making
nominations
29.10.2024 (Tuesday)
Date of Scrutiny of
nominations
30.10.2024(Wednesday)
Last Date for the
withdrawal of
candidatures
04.11.2024(Monday)
Date of Poll 20.11.2024 (Wednesday)
Date of Counting 23.11.2024 (Saturday)
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Date before which election
shall be completed
25.11.2024 (Monday)
5. Total 15 candidates were in the fray for election from 179
Sion – Koliwada Constituency, which included,
interalia, Petitioner
from Indian National Congress and Respondent No.1 from Bhartiya
Janata Party. Voting in pursuance to election to the said Constituency
was held on 20.11.2024. Counting of votes was conducted on
23.11.2024 and the final result was declared. Petitioner secured
65,534 votes (second highest votes) whereas Respondent No.1 with
73,429 votes was declared as the Returned Candidate.
6. Petitioner has filed present Election Petition challenging
election of Respondent No.1 on three (3) main grounds:-
(i)Respondent No.1’s non-disclosure and omission of an
immovable asset acquired through a housing loan worth
Rs.90 lakhs;
(ii)Respondent No.1’s non-disclosure of an Arbitration Award of
Rs.2,72,60,559/- passed against him and in favour of Central
Railways; and
(iii)Respondent No.1’s non-disclosure of liabilities under Column
10(i) in the Affidavit of disclosure under Form No.26.
7. Respondent No.1 filed Application No.10 of 2025 seeking
rejection of Election Petition under Order VII Rule 11 of CPC.
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Petitioner filed Affidavit-in-reply dated 14.07.2025 to the Application
filed by Respondent No.1. Respondent No.1 – Applicant filed Affidavit -
in-Rejoinder dated 24.07.2025. Application No.10 of 2025 is called out
for hearing and being heard by consent of parties.
8. Dr. Tulzapurkar, learned Senior Advocate appearing for
Respondent No.1 would submit that Election Petition is liable to be
rejected as it does not contain a concise statement of material facts as
mandated under Section 83(1)(a) of the RP Act. He would submit that
Election Petition thus does not disclose any cause of action. He would
submit that for setting aside of election, it is incumbent upon
Petitioner to specifically plead non-compliance either with the
provisions of the Constitution of India, the RP Act or Rules or Orders
made thereunder. He would submit that the present Election Petition is
full of vauge allegations, founded on mere presumptions and
assumptions without any cogent or documentary evidence appended in
support thereof.
8.1. With regard to the first ground of challenge, he would
submit that allegation pertaining to purchase of immovable property
through housing loan of Rs.90 lakhs is a bald allegation unsupported
by any substantial or credible evidence. He denies Respondent No.1
has not taken any housing loan in his individual capacity, hence
question of such disclosure in the Affidavit does not arise. He would
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submit that Respondent No.1 alongwith his daughter had initially
intended to purchase a flat and both of them applied for housing loan
jointly. However, the flat was ultimately purchased solely in the name
of his daughter as the sole owner. He would submit that although
Respondent No.1 had signed as co-applicant, the entire
loan/borrowing is serviced by his daughter alone. In support of the
same, Respondent No.1 has placed on record the registered Index II
document of purchase of the said flat below Exhibit ‘A’ at page No.85
and a copy of Certificate issued by the Indian Overseas Bank, Sion
Branch below Exhibit ‘B’ at page Nos.87 and 88 appended to his
Rejoinder dated 24.07.2025. After going through the said documents
he would submit that Petitioner’s allegation fails as also his Election
Petition which fails to disclose any material cause of action. Therefore
this ground does not deserve any countenance and fails.
8.2. With regard to the second ground, he would submit that
Petitioner himself admits in the Petition that by order 11.03.2020 the
said Arbitration Award has been stayed by this Court. Once this is the
position, ground of non-disclosure of liability against the Respondent
No.1 does not arise. He would submit that Petitioner once again failed
to demonstrate the significance of the alleged non-disclosure and how
it could materially affect the election result. He would submit that once
the Award is stayed by the Competent Court and proceedings are
subjudice liability thereunder cannot be construed as undisclosed
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“Government dues”. Hence he would submit that this ground also
cannot survive and is liable to be rejected.
8.3. With regard to the third ground of non-disclosure of
liabilities in Form No.26 of the Affidavit of disclosure, he would submit
that Petitioner has failed to advert and place on record any cogent
material information or documents in support of his allegation of
improper acceptance of nomination by the Returning Officer. He would
submit that Petitioner has failed to demonstrate as to how such non-
disclosure under Column 10(i) of disputed Government dues in Form
No.26 would materially affect the election of Respondent No.1 as the
Returned Candidate.
8.4. On the point of non-disclosure of other loans pending at the
time of filing of Form No.26, he would submit that Petitioner in his
Affidavit-in-reply dated 14.07.2025 to Application under Order VII
Rule 11 of CPC, has referred to CRIF and CIBIL Reports. However
Petitioner failed to annex the same to the Election Petition in the first
instance though the CRIF Report dated 20.12.2024 was available with
Petitioner before filing of the Petition. He would submit that it is
evident that he deliberately withheld the same. Next, he would submit
that CIBIL Report dated 09.07.2025, was obtained after filing of
Petition and only after service of the present Application. He would
submit that this Report merely reflects the status as on the date of the
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Report and not the date when Form No.26 was filed by Respondent
No.1. He would submit that the total amount of Rs.51,97,351 disclosed
by Respondent No.1 in Form No.26 includes other loan amounts such
as liability as guarantor for grant of loan of Rs.20 lakhs dated
31.03.2023 and business loan of Rs.49 lakhs availed on 06.03.2009 as
stated under Column 8(i) at page No. 35 and Column 9 (i) at page
No.39 of the Petition. In support of the same a copy of confirmation of
balance as on 26.10.2024 from Indian Overseas Bank below Exhibit ‘C’
at page No.89 of Rejoinder dated 24.07.2025 is placed on record. He
would submit that Petitioner cannot be permitted to produce new
material evidence in his Affidavit-in-reply to the Order VII Rule 11
Application, rather he ought to have substantiated his case in the
Election Petition itself. Hence he would submit that in the absence of
appropriate documents disclosed in the Petition, Petitioner cannot be
allowed to rely on the same.
8.5. He would submit that Petitioner is attempting to improve his
case / pleadings in the Petition by introducing new pleadings about
lease registration. He would submit that lease registration in question
was obtained is the year 2019 and it has expired on 07.03.2024. Hence
he would submit that such allegations are clearly an afterthought and
completely contrary to the provisions of Section 83 of the RP Act.
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8.6. He would submit that as per Section 100(1)(d)(iv) of the RP
Act, election of returned candidate cannot be declared void for
noncompliance of the provisions of the Constitution of India or the RP
Act or Rules. He would submit that as per Rule 4(A) of the Conduct of
Election Rules, 1961, every candidate is required to file an Affidavit at
the time of submitting his nomination paper to the Returning Officer,
which is thoroughly scrutinized in accordance with the statute and
rules. He would submit that Respondent No.1 filed his statutory
Affidavit at the time of submission of his nomination form / papers and
complied with Rule 4(A). He would submit that as per Section 33(A)
of the said Act, every candidate is required to disclose true and correct
information in the Affidavit submitted as per Rule 4(A) of the Conduct
of Election Rules, 1961. He would submit that Respondent No.1
submitted true and correct information and complied with the
provision of Section 33(A) of the RP Act, therefore, there is compliance
with the provisions of Conduct of Election Rule, 1961, the said Act and
Rules or Orders made thereunder. Hence, according to him, averments
in the Petition fails to make out any case that Respondent No.1 did not
comply with the provisions of the Constitution of India, the RP Act and
Rules or orders thereunder.
8.7. He would submit that contention of Petitioner that Affidavit
filed by Respondent No.1 is false, misleading and there is suppression
of details of his financial liabilities is
prima facie incorrect. He would
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submit that Section 125(A) of the RP Act provide penalty for filing
false Affidavit to the extent of imprisonment of a prison term which
may be extended to 6 months or fine. He would submit that for
invoking provisions of Section 125(A), Petitioner has to initiate
appropriate proceedings and establish that Respondent No.1 filed false
Affidavit or concealed material information in his Affidavit filed as per
Rule 4(A) read with Section 31(A) of the RP Act. Therefore, he would
argue that allegations of Petitioner in the Petition are not sufficient to
establish conviction under Section 125(A) of the said Act. He would
submit that Petitioner has not given any details as to how the statutory
Affidavit filed by Respondent No.1 is false, misleading and how
Respondent No.1 has suppressed his liabilities. Hence, according to
him Petitioner has failed to establish the ground under Section 100(1)
(d)(iv) of the RP Act. He would therefore submit that there is no cause
of action to file the present Petition and Petition is liable to be
dismissed as per provisions of Order VII Rule 11 (A) of CPC for want of
cause of action.
8.8. He would submit that the sine qua non for maintenance of
Election Petition and to take the same to trial is demonstration through
pleading as to how the allegations, if taken to be true, would
materially affect the election of the returned candidate. He would
submit that if there are no pleadings demonstrating that result of the
election is materially affected, Court must reject the Election Petition
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by exercising jurisdiction under Order VII Rule 11 of CPC.
8.9. In support of his submissions he has referred to and relied
upon the decisions of the Supreme Court in the case of (i) Harishankar
Jain Vs. Sonia Gandhi
1
; (ii) Ramsukh Vs. Dinesh Aggarwal
2
and (iii)
Bita w/o Ghanshyam Ramteke Vs. Nanaji Sitaram Shamkule
3
. He
would accordingly pray for rejection of the Election Petition under the
provisions of Order VII Rule 11 of CPC.
9. PER CONTRA, Mr. Krishnan, learned Advocate appearing for
the Petitioner has vehemently opposed the Application under Order VII
Rule 11 of CPC.
9.1. He would submit that result of election is affected by non-
compliance of provisions of the Constitution of India, the RP Act and
the Rules or orders framed thereunder namely violation of Section
100(1)(d)(iv) of the RP Act. He would submit that election of
Respondent No.1 stands vitiated on account of deliberate suppression
and misrepresentation of material particulars in the Affidavit in Form
No.26 filed under Section 33A of the RP Act read with Rule 4A of the
Conduct of Election Rules, 1961 which further mandates every
candidate to declare all assets, financial liabilities, criminal antecedents
and educational qualifications.
1 2001 (8) SCC 233.
2 2009 (10) SCC 541.
3 2010 SCC OnLine Bom 1101.
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9.2. On the ground of non-disclosure, he would submit that
Respondent No.1 failed to disclose an immovable asset acquired by
him availed through a housing loan of Rs.90,00,000, with outstanding
balance of Rs.86,41,968 as reflected in the CRIF Report. He would
submit that this figure is of significant magnitude and hence cannot be
regarded as inadvertent omission. He would submit that such
concealment of material fact amounts to breach of statutory mandate.
He would submit that Respondent No. 1 is thus guilty of not disclosing
the relevant information in his Affidavit of disclosure and such lack of
transparency and non-disclosure has materially affected the result of
the election. He would submit that liabilities of candidates are required
to be disclosed so that the electorate can form an informed decision
while returning a candidate.
9.3. On the ground of non-disclosure of liability under Arbitral
Award, he would submit that Respondent No.1 has deliberately
omitted disclosure of the two arbitral awards in his Affidavit as under:-
(a) Arbitral award dated 12.07.2011 directing payment of
Rs.2,00,449 to the Government, which remains a subsisting
liability; and
(b) Arbitral award dated 30.03.2017 directing payment of
Rs.2,72,60,559 to Central Railway. He would submit that
though execution of this Award has been stayed by this Court,
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liability has not been extinguished and thus continues to
subsist for the purposes of disclosure.
9.4. He would submit that pendency of Appeal, Review or Stay
does not nullify the obligation to disclose such liability in Form No.26
as the object is to enable the electorate to assess the complete financial
standing of the candidate at the time of election. He would submit that
such suppression amounts to lack of transparency and thereby
materially affects the election result.
9.5. On the ground of filing Form No.26, he would submit that
under Column 10(i) of Form No.26 a candidate is required to disclose
all liabilities that are under dispute including those subject to pending
litigation or Arbitration. However, Respondent No.1 failed to mention
the above liabilities which includes liability as guarantor of Rs.20 lakhs
and business loan liability of Rs.49 lakhs, both of which are reflected in
the CRIF and CIBIL Reports which constitute material encumbrances
for the electorate to know.
9.6. With regard to the objection under Section 83(1) of the RP
Act, he would submit that Petition contains a concise statement of
material facts with sufficient particulars to disclose cause of action
under Section 100(1)(d)(iv) of the RP Act. He would submit that
Petition clearly discloses triable issues based on documentary material
and public record. Hence, in view of the above grounds and
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submissions, Mr. Krishnan, would submit that deliberate suppression of
significant liabilities, arbitral awards and disputed liabilities by
Respondent No.1 clearly amount to violation of Section 33A of the RP
Act and incomplete disclosure in Form No.26 amounts to misleading
the electorate and materially affecting the election result. Hence he
would submit that Election Petition is maintainable in law and on facts
which raise substantial triable issues.
9.7. In support of his above submissions, he has referred to and
relied upon the following decisions of the Supreme Court:
(i)Sewaram Vs. Sobharan Singh
4
;
(ii)Union of India and Ors. Vs. Association for Democratic
Reforms and Ors.
5
;
(iii)Ravi Yashwant Bhoir v. District Collector, Raigad
6
;
(iv)Resurgence India Vs. Election Commission of India and Ors.
7
;
(v)Kisan Shankar Kathore Vs. Arun Dattatray Sawaant and Ors.
8
;
(vi)Krishnamoorthy v. Sivakumar and Ors .
9
; and
(vii)Lok Prahari Vs. Union of India and Ors.
10
9.8. Mr. Krishnan, would submit that Election Petition is not
liable to be dismissed in
limine under Section 86 of the RP Act for
alleged non-compliance of Section 83 (1) of the RP Act. He would
4 AIR 1993 SC 212
5 AIR 2002 SC 2112
6 AIR 2012 SC 1339
7 AIR 2014 SC 344
8 (2014) 14 SCC 162
9 AIR 2015 SC 1921
10 AIR 2018 SC 1041
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submit that Petitioner must be permitted to prove the allegations /
contentions made out in the Election Petition by leading appropriate
evidence at trial. Hence he would pray that Application under Order
VII Rule 11 of CPC be dismissed.
10. I have heard Dr. Tulzapurkar for Respondent No.1 –
Applicant and Mr. Krishnan for the Election Petitioner and with their
able assistance perused the Election Petition and annexures appended
thereto. Contentions of the parties in the Application under Order VII
Rule 11 are considered and submissions made by learned Advocates
for both parties have received due consideration of this Court
11. Petitioner has challenged the election of Respondent No. 1
under Section 100 (1)(d)(iv) of the RP Act and for issuance of
directions for initiation of proceedings under Section 125A of the RP
Act.
12. It is however prima facie seen that the Election Petition
comprises of vague and generic pleadings and there is complete
absence of material facts. Rather at the outset, I wish to note that Mr.
Krishnan has argued that whatever is stated in the Election Petition is
enough for Petitioner to lay the foundation for challenging the election
of Respondent No. 1 and Petitioner be called upon to prove the same
in evidence. He has fairly argued that though what Petitioner will
prove in evidence is not specifically in so many words stated in the
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Election Petition but whatever minimal pleadings stated therein are
enough for maintainability of the Petition and hence Petitioner should
be allowed to prove the same in trial. I do not however wish to
subscribe or accept the above submission of Mr. Krishnan, since if
Petition has to be maintained under Section 100(1)(d)(iv) or under
Section 101 of the RP Act then entire cause of action in the form of
specific material facts or concise statement of material facts along with
full disclosure of names, dates, place, incidents, role etc. of such parties
involved needs to be stated specifically in the Petition.
13. That is the sine qua non of the Election Petition. In this
regard attention is drawn to the provisions of Section 83 of the RP
Act:-
“
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.”
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14. Thus, it is mandatory under provisions of Section 83(1) (a)
of the RP Act that Election Petition must contain a concise statement of
the material facts with full particulars of corrupt practice with all
details on which Petitioner relies. When provisions of Section 83(1)(a)
are read in conjunction with provisions of Section 100(1)(d)(iii) and
(iv) of RP Act what emerges is that the Election Petition must contain a
concise statement of material facts to demonstrate the ground of
improper reception, refusal or rejection of any vote or reception of any
vote which is void or a concise statement of material facts to
demonstrate non-compliance with provisions of the Constitution or of
the Act or Rules or orders made thereunder.
15. I would now like to advert to the case in hand to examine
whether the present Election Petition suffers from the vice of non-
disclosure of material facts as stipulated in Section 83(1)(a) of RP Act.
Case of Petitioner is confined to alleged violation of Section 100(1)(d)
(iv). For the sake of ready reference, the said Section 100 is
reproduced below:
“
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
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(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of
the returned candidate [by an agent other than his
election agent], or
(iii) by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the returned
candidate to be void.
(2) If in the opinion of the High Court, a returned candidate
has been guilty by an agent, other than his election agent, of
any corrupt practice but the High Court is satisfied—
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and every
such corrupt practice was committed contrary to the
orders, and without 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.”
16. From above, it is seen that for invoking ground under
Section 100(1)(d)(iv) of the RP Act, it is incumbent for Election
Petitioner to plead in Election Petition that result of election of
Returned Candidate has been materially affected by non-compliance
with provisions of the Constitution or the provisions of the RP Act or of
any Rules or orders made thereunder by furnishing entire details. It is
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not open to Petitioner to argue that he has placed on record some
details and the rest will be proved by him by leading evidence.
Meaning of concise material facts mean all such relevant details calling
an election. Petitioner cannot improve his case in evidence by pleading
facts which are not pleaded in the Election Petition.
17. In the decision of this Court passed in the case of Ravindra
Dattaram Waikar Vs. Amol Gajanan Kirtikar and Ors.
11
(Coram : Mr.
Sandeep V. Marne, J.) this Court has reiterated the settled position of
law under the RP Act dealing with the necessity of pleading of material
facts for maintainability of the Election Petition in paragraph Nos. 26
to 33 thereof which refer to the well settled authoritative
pronouncements of the Supreme Court in similarly placed cases. What
is held by this Court in paragraph Nos. 26 to 33 is directly relevant to
the present case and the discussion herein above and the same are
reproduced herein below for immediate reference:-
"
26) Before proceeding ahead with the examination as to
whether the Election Petition filed by the Petitioner
discloses concise statement of material facts demonstrating
grounds under Section 100(1)(d)(iii) and (iv) of the RP
Act, it would be necessary to take stock of few judgments
dealing with the necessity for pleading of material facts for
maintenance of an Election Petition. By now it is well
settled position of law that Election Petition is a statutory
remedy and not an action in equity or a remedy in common
law. It is also equally well settled position that said Act is a
complete and self-contained Code. Therefore, strict
compliance with the provisions of the said Act is mandatory
requirement for exercising the statutory remedy under the
RP Act. Reference in this regard can be made to the
11 Application (L) No. 29930 of 2024 with Application (L) No. 29880 of 2024 in Election
Petition No.6 of 2024 decided on 19.12.2024.
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judgment of the Apex Court in Jyoti Basu (supra) wherein
the Apex Court has held in paragraph 8 as under:-
“ 8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure
and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside
of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory
limitation. An election petition is not an action at
common law, nor in equity. It is a statutory proceeding
to which neither the common law nor the principles of
equity apply but only those rules which the statute
makes and applies. It is a special jurisdiction, and a
special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts
familiar to common law and equity must remain
strangers to election law unless statutorily embodied. A
court has no right to resort to them on considerations
of alleged policy because policy in such matters as
those, relating to the trial of election disputes, is what
the statute lays down. In the trial of election disputes,
court is put in a strait-jacket. Thus the entire election
process commencing from the issuance of the
notification calling upon a constituency to elect a
member or members right up to the final resolution of
the dispute, if any, concerning the election is regulated
by the Representation of the People Act, 1951,
different stages of the process being dealt with by
different provisions of the Act. There can be no election
to Parliament or the State Legislature except as
provided by the Representation of the People Act, 1951
and again, no such election may be questioned except
in the manner provided by the Representation of the
People Act. So the Representation of the People Act has
been held to be a complete and self-contained code
within which must be found any rights claimed in
relation to an election or an election dispute. We are
concerned with an election dispute. The question is
who are parties to an election dispute and who may be
impleaded as parties to an election petition. We have
already referred to the scheme of the Act. We have
noticed the necessity to rid ourselves of notions based
on common law or equity. We see that we must seek
an answer to the question within the four corners of
the statute. What does the Act say? ”
27) In Dharmin Bai Kashyap Vs. Babli Sahu and others
12
,
the Apex Court has reiterated the position that where a right
or a liability is created by a statute, which gives a special
12 (2023) 10 SCC 461
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remedy for enforcing it, the remedy provided by the statute
must be availed of in accordance with the statute and that if a
statute provides for doing a thing in a particular manner it has
to be done in that matter alone and in no other manner. The
Supreme Court has held in paragraph 17 as under:-
“17. There is hardly any need to reiterate the trite
position of law that when it comes to the interpretation
of statutory provisions relating to election law,
jurisprudence on the subject mandates strict
construction of the provisions [Laxmi Singh v. Rekha
Singh, (2020) 6 SCC 812]. Election contest is not an
action at law or a suit in equity but purely a statutory
proceeding, provision for which has to be strictly
construed. The petitioner having failed to make any
application in writing for re-counting of votes as
required under Section 80 of the Nirvachan Niyam,
1995, and having failed to seek relief of declarations as
required under Rule 6 of the 1995 Rules, the election
petition filed by the petitioner before the Sub-
Divisional Officer (R) seeking relief of re-counting of
votes alone was not maintainable.”
28) Having held that strict compliance with provisions of
RP Act is mandatory requirement for exercise of statutory
remedy, it would be appropriate to discuss the relevant case
law on the subject dealing with the nature of pleadings that
are required for maintainability of a valid Election Petition.
In Mangani Lal Mandal (5 th supra), the Apex Court held
that the sine qua non for declaring an election of returned
candidate to be void under Section 100(1)(d)(iv) of the RP
Act is further proof of the fact that such breach or non-
observance results in materially affecting the result of
returned candidate. It is further held that mere violation or
breach or non-observance of the provisions of Constitution,
the Act, Rules or orders made thereunder would not ipso
facto render the election of returned candidate void. The
Supreme Court held in paragraphs 10, 11 and 12 as under:-
“10. A reading of the above provision with Section 83
of the 1951 Act leaves no manner of doubt that where
a returned candidate is alleged to be guilty of
noncompliance with the provisions of the
Constitution or the 1951 Act or any rules or orders
made thereunder and his election is sought to be
declared void on such ground, it is essential for the
election petitioner to aver by pleading material facts
that the result of the election insofar as it concerned
the returned candidate has been materially affected
by such breach or non-observance. If the election
petition goes to trial then the election petitioner has
also to prove the charge of breach or non-compliance
as well as establish that the result of the election has
been materially affected. It is only on the basis of
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such pleading and proof that the Court may be in a
position to form opinion and record a finding that
breach or non-compliance with the provisions of the
Constitution or the 1951 Act or any rules or orders
made thereunder has materially affected the result of
the election before the election of the returned
candidate could be declared void.
11. A mere non-compliance or breach of the
Constitution or the statutory provisions noticed
above, by itself, does not result in invalidating the
election of a returned candidate under Section 100(1)
(d)(iv). The sine qua non for declaring the election of
a returned candidate to be void on the ground under
clause (iv) of Section 100(1)(d) is further proof of the
fact that such breach or nonobservance has resulted
in materially affecting the result of the returned
candidate. In other words, the violation or breach or
non-observation or non-compliance with the
provisions of the Constitution or the 1951 Act or the
rules or the orders made thereunder, by itself, does
not render the election of a returned candidate void
Section 100(1) (d)(iv). 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.
The view that we have taken finds support from the
three decisions of this Court in: (1) Jabar Singh v.
Genda Lal [AIR 1964 SC 1200 : (1964) 6 SCR 54] ;
(2) L.R. Shivaramagowda v. T.M. Chandrashekar
[(1999) 1 SCC 666];and (3) Uma Ballav Rath v.
Maheshwar Mohanty [(1999) 3 SCC 357] .
12. Although the impugned judgment runs into 30
pages, but unfortunately it does not reflect any
consideration on the most vital aspect as to whether
the non-disclosure of the information concerning the
appellant's first wife and the dependent children born
from that wedlock and their assets and liabilities has
materially affected the result of the election insofar as
it concerned the returned candidate. As a matter of
fact, in the entire election petition there is no
pleading at all that the suppression of the information
by the returned candidate in the affidavit filed along
with the nomination papers with regard to his first
wife and dependent children from her and
nondisclosure of their assets and liabilities has
materially affected the result of the election. There is
no issue framed in this regard nor is there any
evidence let in by the election petitioner. The High
Court has also not formed any opinion on this
aspect.”
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29) In Shambhu Prasad Sharma (supra) the Apex Court
dealt with an Appeal arising out of order passed by the
High Court dismissing the Election Petition on the ground
that the same did not make concise statement of material
facts and did not disclose of cause of action. Upholding the
rejection of Petition under provisions of Order VII Rule 11
of the CPC, the Apex Court held in paragraphs 15, 18 and
20 as under:-
“15. Suffice it to say that the case pleaded by the
appellant was not one of complete failure of the
requirement of filing an affidavit in terms of the
judgment of this Court and the instructions given by
the Election Commission but a case where even
according to the appellant the affidavits were not in
the required format. What is significant is that the
election petition did not make any averment leave
alone disclose material facts in that regard suggesting
that there were indeed any outstanding dues payable
to any financial institution or the Government by the
returned candidate or any other candidate whose
nomination papers were accepted. The objection
raised by the appellant was thus in the nature of an
objection to form rather than substance of the
affidavit, especially because it was not disputed that
the affidavits filed by the candidates showed the
outstanding to be nil.
16. to 17. xxxxx
18. From the above it is evident that the form of the
nomination papers is not considered sacrosanct. What
is to be seen is whether there is a substantial
compliance with the requirement as to form. Every
departure from the prescribed format cannot,
therefore, be made a ground for rejection of the
nomination paper.
19. xxxxx
20. Coming to the allegation that other candidates
had also not submitted affidavits in proper format,
rendering the acceptance of their nomination papers
improper, we need to point out that the appellant was
required to not only allege material facts relevant to
such improper acceptance, but further assert that the
election of the returned candidate had been
materially affected by such acceptance. There is no
such assertion in the election petition. Mere improper
acceptance assuming that any such improper
acceptance was supported by assertion of material
facts by the appellant-petitioner, would not disclose a
cause of action to call for trial of the election petition
on merit unless the same is alleged to have materially
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affected the result of the returned candidate.”
30) In Mairembam Prithviraj alias Prithviraj Singh
(supra), the Apex Court has relied upon its judgment in
Durai Muthuswami Versus. N Nachiappan
13
, and held in
paragraphs 22 and 23 as under:-
“ 22. The facts, in brief, of Durai Muthuswami [Durai
Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] are
that the petitioner in the election petition contested in
the election to the Tamil Nadu Legislative Assembly
from Sankarapuram constituency. He challenged the
election of the first respondent on the grounds of
improper acceptance of nomination of the returned
candidate, rejection of 101 postal ballot papers,
ineligible persons permitted to vote, voting in the
name of dead persons and double voting. The High
Court dismissed the election petition by holding that
the petitioner failed to allege and prove that the
result of the election was materially affected by the
improper acceptance of the nomination of the first
respondent as required by Section 100(1)(d) of the
Act. The civil appeal filed by the petitioner therein
was allowed by this Court in Durai Muthuswami
[Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC
45] in which it was held as follows : (SCC pp. 48-49,
para 3).
“3. Before dealing with the question whether the
learned Judge was right in holding that he could not
go into the question whether the 1 st respondent's
nomination has been improperly accepted because
there was no allegation in the election petition that
the election had been materially affected as a result
of such improper acceptance, we may look into the
relevant provisions of law. Under Section 81 of the
Representation of the People Act, 1951 an election
petition calling in question any election may be
presented on one or more of the grounds specified in
sub-section (1) of Section 100 and Section 101. It is
not necessary to refer to the rest of the section. Under
Section 83(1)(a), insofar as it is necessary for the
pusaidose of this case, an election petition shall
contain a concise statement of the material facts on
which the petitioner relies. Under Section 100(1) 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…
(b)-(c) ***
13 (1973) 2 SCC 45
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(d) that the result of the election, insofar as it
concerns a returned candidate, has been
materially affected—
(i) by the improper acceptance of any
nomination, or
(ii)-(iii) ***
the High Court shall declare the election of the
returned candidate to be void. Therefore, what
Section 100 requires is that the High Court before it
declares the election of a returned candidate is void
should be of opinion that the result of the election
insofar as it concerns a returned candidate has been
materially affected by the improper acceptance of any
nomination. Under Section 83 all that was necessary
was a concise statement of the material facts on
which the petitioner relies. That the appellant in this
case has done. He has also stated that the election is
void because of the improper acceptance of the 1st
respondent's nomination and the facts given showed
that the 1st respondent was suffering from a
disqualification which will fall under Section 9-A.
That was why it was called improper acceptance. We
do not consider that in the circumstances of this case
it was necessary for the petitioner to have also further
alleged that the result of the election insofar as it
concerns the returned candidate has been materially
affected by the improper acceptance of the 1st
respondent's nomination. That is the obvious
conclusion to be drawn from the circumstances of this
case. There was only one seat to be filled and there
were only two contesting candidates. If the allegation
that the 1st respondent's nomination has been
improperly accepted is accepted the conclusion that
would follow is that the appellant would have been
elected as he was the only candidate validly
nominated. There can be, therefore, no dispute that
the result of the election insofar as it concerns the
returned candidate has been materially affected by
the improper acceptance of his nomination because
but for such improper acceptance he would not have
been able to stand for the election or be declared to
be elected. The petitioner had also alleged that the
election was void because of the improper acceptance
of the 1st respondent's nomination. In the case of
election to a single-member constituency if there are
more than two candidates and the nomination of one
of the defeated candidates had been improperly
accepted the question might arise as to whether the
result of the election of the returned candidate had
been materially affected by such improper reception.
In such a case the question would arise as to what
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would have happened to the votes which had been
cast in favour of the defeated candidate whose
nomination had been improperly accepted if it had
not been accepted. In that case it would be necessary
for the person challenging the election not merely to
allege but also to prove that the result of the election
had been materially affected by the improper
acceptance of the nomination of the other defeated
candidate. Unless he succeeds in proving that if the
votes cast in favour of the candidate whose
nomination had been improperly accepted would
have gone in the petitioner's favour and he would
have got a majority he cannot succeed in his election
petition. Section 100(1)(d)(i) deals with such a
contingency. It is not intended to provide a
convenient technical plea in a case like this where
there can be no dispute at all about the election being
materially affected by the acceptance of the improper
nomination. “Materially affected” is not a formula
that has got to be specified but it is an essential
requirement that is contemplated in this section. Law
does not contemplate a mere repetition of a formula.
The learned Judge has failed to notice the distinction
between a ground on which an election can be
declared to be void and the allegations that are
necessary in an election petition in respect of such a
ground. The petitioner had stated the ground on
which the 1st respondent's election should be
declared to be void. He had also given the material
facts as required under Section 83(1)(a). We are,
therefore, of opinion that the learned Judge erred in
holding that it was not competent for him to go into
the question whether the 1st respondent's nomination
had been improperly accepted.”
23. It is clear from the above judgment in Durai
Muthuswami [Durai Muthuswami v. N. Nachiappan,
(1973) 2 SCC 45] that there is a difference between
the improper acceptance of a nomination of a
returned candidate and the improper acceptance of
nomination of any other candidate. There is also a
difference between cases where there are only two
candidates in the fray and a situation where there are
more than two candidates contesting the election. If
the nomination of a candidate other than the
returned candidate is found to have been improperly
accepted, it is essential that the election petitioner
has to plead and prove that the votes polled in favour
of such candidate would have been polled in his
favour. On the other hand, if the improper acceptance
of nomination is of the returned candidate, there is
no necessity of proof that the election has been
materially affected as the returned candidate would
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not have been able to contest the election if his
nomination was not accepted. It is not necessary for
the respondent to prove that result of the election
insofar as it concerns the returned candidate has been
materially affected by the improper acceptance of his
nomination as there were only two candidates
contesting the election and if the appellant's
nomination is declared to have been improperly
accepted, his election would have to be set aside
without any further enquiry and the only candidate
left in the fray is entitled to be declared elected.”
31) The conspectus of the above discussion is that for
maintaining an Election Petition and for taking it to the
stage of trial, it is necessary that there is strict compliance
with the provisions of Section 83(1)(a) of the RP Act. 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) or (iv) of
the RP Act would necessarily result in dismissal of Election
Petition by invoking powers under Order VII Rule 11 of the
Code. The Apex Court has summed up the legal position in
this regard after taking stock of various judgments rendered
in the past in Kanimozhi Karunanidhi (supra) in paragraph
28 as under:-
“28. The legal position enunciated in afore-stated
cases may be summed up as under:—
i. Section 83(1)(a) of said 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
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negative fact, if necessary.
iv. In order to get an election declared as void
under Section 100(1)(d)(iv) of the said Act, the
Election petitioner must aver that on account of
noncompliance 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 pusaidose.
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 said Act.”
32) The above principles are reiterated in subsequent
judgment in Karim Uddin Barbhuiya (supra), in which it is
held in paragraph Nos. 13, 14, 15, 22 and 24 as under:-
“13. It hardly needs to be reiterated that in an
Election Petition, 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 said Act. As
held in Bhagwati Prasad Dixit in Dhartipakar Madan
Lal ‘Ghorewala’ v. Rajeev Gandhi and Agarwal v.
Rajiv Gandhi , 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 v. Ramratan Chaturvedi 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
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pleadings in election cases, the sum and
substance of which being:
(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 [(1954) 2 SCC 306 : (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) 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
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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 said 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 v. A. Santhana Kumar
(supra):—
xxxxx
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.
xxxxx
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 said Act.”
33) The Apex Court in Karikho Kri (supra) held in
paragraph Nos.40 and 41 as under:-
40. Having considered the issue, we are of the firm
view that every defect in the nomination cannot
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straightaway be termed to be of such character as to
render its acceptance improper and each case would
have to turn on its own individual facts, insofar as
that aspect is concerned. The case law on the subject
also manifests that this Court has always drawn a
distinction between nondisclosure of substantial
issues as opposed to insubstantial issues, which may
not impact one's candidature or the result of an
election. The very fact that Section 36(4) of the Act of
1951 speaks of the Returning Officer not rejecting a
nomination unless he is of the opinion that the defect
is of a substantial nature demonstrates that this
distinction must always be kept in mind and there is
no absolute mandate that every non-disclosure,
irrespective of its gravity and impact, would
automatically amount to a defect of substantial
nature, thereby materially affecting the result of the
election or amounting to ‘undue influence’ so as to
qualify as a corrupt practice.
41. The decision of this Court in Kisan Shankar
Kathore (supra), also demonstrates this principle, as
this Court undertook examination of several
individual defects in the nomination of the returned
candidate and found that some of them were actually
insubstantial in character. This Court noted that two
facets required consideration - Whether there is
substantial compliance in disclosing requisite
information in the affidavits filed along with the
nomination and whether non-disclosure of
information on identified aspects materially affected
the result of the election. This Court observed, on
facts, that non-disclosure of the electricity dues in
that case was not a serious lapse, despite the fact that
there were dues outstanding, as there was a bonafide
dispute about the same. Similar was the observation
in relation to non-disclosure of municipal dues, where
there was a genuine dispute as to re-valuation and re-
assessment for the pusaidose of tax assessment.
Earlier, in Sambhu Prasad Sharma v. Charandas
Mahant, this Court observed that the form of the
nomination paper is not considered sacrosanct and
what is to be seen is whether there is substantial
compliance with the requirement as to form and
every departure from the prescribed format cannot,
therefore, be made a ground for the rejection of the
nomination paper.”
18. Applying the above yardstick and authoritative
pronouncements of the Supreme Court to the present case, it is seen
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that there is absolute non-compliance of the provisions of Section 83 of
the RP Act which contemplate that an Election Petition has to
mandatorily contain a concise statement of material facts to begin with
on which the Petitioner relies and full particulars of any corrupt
practice that he alleges including as full a statement as possible of
names of parties alleged to have committed such corrupt practices and
the date and place of commission of each such practice.
19. In the present case, Petitioner has merely alleged general
and vague violations by Respondent No. 1 without specifying any
details whatsoever. No concise statement of material facts alleging
violation under Section 83 of the RP Act is stated. Hence, the grounds
stated in paragraph Nos. III(a) to III(i) in the Petition are not in
consonance with the violation alleged under Section 83 read with
Section 100(1)(d)(iv) of RP Act since no particulars are given and
Petitioner himself has during the course of his arguments to oppose the
Order VII Rule 11 Application argued that he should be given an
opportunity to produce evidence to that effect at trial.
20. In the instant case, Petitioner has challenged the election of
Respondent No.1 on the ground that result of the election, insofar as it
concerned Respondent No.1 was materially affected by non-
compliance with Article 324 of the Constitution and by non-compliance
with Rule-4A of the said Rules read with Section 33 of the Act. It may
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be noted that Section 33 of the RP Act pertains to presentation of
nomination paper and the requirement for a valid nomination. Section
36 pertains to scrutiny of nomination by the Returning Officer. Sub-
section (2) thereof empowers Returning Officer either on objections
made to any nomination or on his own motion to reject any
nomination on grounds mentioned therein. One of the ground to reject
nomination is when there has been failure to comply with any of the
provisions of Section 33. Sub-section (4) of Section 36 states that
Returning Officer shall not reject any nomination paper on the ground
of any defect which is not of a substantial character.
21. Part-II of the Conduct of Election Rules, 1961 deals with
General Provisions. Rule - 4 and Rule - 4A pertain to the submission of
nomination paper and Form of Affidavit to be filed at the time of
delivering nomination paper which are reproduced below:-
“4. Nomination paper- Every nomination paper presented
under sub-section (i) of section 33 shall be completed in such
one of the Forms 2A to 2E as may be appropriate:
Provided that a failure to complete or defect in completing, the
declaration as to symbols in a nomination paper in Form 2A or
Form 2B shall not be deemed to be a defect of a substantial
character within the meaning of sub-section (4) of section 36.
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.”
22. In the instant case, Respondent No.1’s nomination is duly
scrutinized under Section 36. No objection is sustained by the
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Returning Officer and his nomination is accepted as valid. Once such
scrutiny attains finality, then election can only be set aside under
Section 100 if it is shown that the result of such election has been
materially affected by non-compliance with the provisions of the
Constitution or the RP Act. The pleadings in the Petition do not
disclose how the alleged omissions had a material bearing on the result
of the election.
23. I am of the considered view that while disclosure in Form
No.26 is mandatory, non-disclosure or partial disclosure constitutes an
irregularity attracting Section 125A of the Act, and it cannot be a
ground for setting aside the election under Section 100(1)(d)(iv). In
the present case the alleged omissions do not amount to non-
compliance with provisions of Section 33 or Rule 4A so as to constitute
a defect of substantial character under Section 36(4) of the RP Act.
24. It is also significant to note that Affidavit in Form No.26
along with nomination papers is required to be furnished by the
candidate as per Rule 4A of the Rules read with Section 33 of RP Act.
It is seen that the Returning Officer is empowered, either on objections
made to any nomination or on his own motion, to reject any
nomination on grounds mentioned in Section 36(2), including the
ground that there has been a failure to comply with any of the
provisions of Section 33 of the Act. However in the case of Respondent
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No.1, at the time of scrutiny of his nomination paper and his Affidavit
in Form No.26 neither any objection is raised nor Returning Officer
has found any lapse or non-compliance of Section 33 or Rule 4A of
Rules. Petitioner has exercised his right to question the Affidavit by
filing the present Election Petition under Section 100(1)(d)(iv) of the
RP Act. However, there are no material facts stated in the Petition
constituting cause of action to maintain challenge to this ground under
Section 100(1)(d)(iv) of RP Act.
25. In so far as the issue of non-disclosure is concerned, case of
Petitioner is that in Form No.26, appended below Exhibit 'A' at page
No.24 of the Petition, Respondent No.1 has not disclosed his liabilities
so as to allow the electorate to come to an informed decision about the
existing liabilities of Respondent No.1 before casting their vote.
According to Mr. Krishnan this non-disclosure has a material effect in
the disclosure form. Mr. Krishnan has vehemently argued that in Part
'B' pertaining to 'Abstract of the details given in Form No.26'
Respondent No.1 has failed to disclose Government dues. The said
Government dues,
inter alia, pertain to non-disclosure of an Arbitration
Award of Rs.2,72,60,559/- in favour of Central Railway. However the
Petitioner himself is knowledgeable about the fact that the said Award
has been stayed by this Court. It is infact true that the said Award has
been stayed by order dated 11.03.2020, such is the pleading of
Petitioner himself in ground 'f(ii)' at page No.11 of the Petition. Once
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the Arbitration Award is stayed by the Competent Court in pending
proceedings, non-disclosure of the same as liability of Respondent No.1
is not required to be disclosed as the said liability is not crystallised. It
is pending adjudication.
26. The next issue of non-disclosure pertains to a housing loan of
Rs.90 Lakhs disbursed to Respondent No.1. This ground once again
cannot be countenanced as non-disclosure because the said loan has
not been disbursed to Respondent No.1
per se. It is prima facie seen
that flat is acquired by availing the above loan by the daughter of
Respondent No.1. This fact is certified by the Index II document
appended at page No.85 and Bank's letter dated 15.07.2025 appended
at page No.87 of the Rejoinder in the Interim Application. Once this
position is clarified there is no ambiguity about the Respondent No.1’s
case even if in the first instance, he may have applied to the Bank as a
co-applicant alongwith his daughter. It is seen that in the Election
Petition itself in paragraph No.5(e), in so far as this ground is
concerned it appears that Petitioner was having knowledge of all these
facts but he chose not to disclose them as they have been struck off by
a whitener in the Election Petition before it is filed. Be that as it may,
perusal of Form No.26
prima facie shows that appropriate and
adequate disclosure has been made by Respondent No.1 in Part ‘B’ of
his movable and immovable assets, including liabilities from banks/
financial institutions to the tune of Rs.51.97/- Lakhs. Hence the
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objection raised by the Petitioner are clearly not sustainable.
27. It is seen that on scrutiny, the Returning Officer has not
found any ambiguity or mistake much less, non-disclosure or falsehood
which can be deemed as suppression. It is in this context that when
Election Petitioner approaches the Court he has to make a concise
material statement of facts with all details in the Petition itself at the
threshold. The Petitioner cannot improve his case in further pleadings
which is the attempt of Petitioner before me. Once the nomination of
Respondent No.1 is held to be valid, it is deemed to be accepted as per
Section 33 of RP Act and it can only be rejected at the time of scrutiny
under Section 36(2) of RP Act. In this regard provisions of Section
36(3) and (4) are therefore extremely crucial and apply to Respondent
No.1's case which are alluded to hereinabove. The said provisions read
as under:-
“
36. Scrutiny of nominations.—
(1) xxxxxx
(2) xxxxxx
(3) Nothing contained in clause (b) or clause (c)] of sub-section
(2) shall be deemed to authorise the rejection of the nomination
of any candidate on the ground of any irregularity in respect of
a nomination paper, if the candidate has been duly nominated
by means of another nomination paper in respect of which no
irregularity has been committed.
(4) The returning officer shall not reject any nomination paper
on the ground of any defect which is not of a substantial
character."
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28. Thus once scrutiny is held by Returning Officer and he
endorses each nomination paper, his decision of accepting the same
and the list of validly nominated candidates is prepared that is to say
that candidates whose nominations have been found valid. It is a
statutory process envisaged under Sections 30, 33 and 34 of the RP
Act. Therefore I am not inclined to accept the submissions advanced
by Mr. Krishnan in the present case regarding suppression and non-
disclosure.
29. Hence in the absence of specific and necessary pleadings and
reliance placed on aforesaid findings and observations including the
citations discussed, in my opinion on a holistic consideration of the
pleadings stated in paragraph Nos. III(a) to III(i) of the Petition the
present Election Petition is liable to be rejected under Order VII Rule
11 of the CPC.
30. In view of the above, I am inclined to agree with the
submissions advanced by Dr. Tulzapurkar in the Application filed
below Order VII Rule 11 of CPC seeking dismissal of the Election
Petition.
31. I am of the view that Petitioner has failed to ensure strict
compliance with the statutory provisions of the RP Act namely Section
83(1)(a) of the RP Act. Therefore following the mandate under various
judgments of the Supreme Court, particularly in the case of Kanimozhi
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Karunanidhi Vs. A. Santhana Kumar and others
14
and Karim Uddin
Barbhuiya Vs. Aminul Haque Laskar and others
15
that even a singular
omission of statutory requirement must entail dismissal of the Election
Petition by having recourse to provisions of Order VII Rule 11 of CPC,
in my view, the present Election Petition does not disclose any cause of
action for making out any of the ground under Section 100(1)(d)(iv)
read with Section 83 of RP Act and therefore the Election Petition
cannot be taken to trial and is liable to be rejected by having recourse
to the provisions of Order VII Rule 11 of CPC. Resultantly the Election
Petition fails.
32. In view of the above, Application No.10 of 2025 is allowed.
Resultantly, Election Petition No.36 of 2025 is rejected under Order VII
Rule 11 of CPC.
33. Election Petition No.36 of 2025 is accordingly dismissed. No
costs.
[ MILIND N. JADHAV, J. ]
14 2023 SCC OnLine SC 573
15 2024 SCC OnLine SC 509
38 of 38
AJAY
TRAMBAK
UGALMUGALE
Digitally signed
by AJAY
TRAMBAK
UGALMUGALE
Date:
2025.08.18
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