KARIM UDDIN BARBHUIYA v. AMINUL HAQUE LASKAR AND 12 ORS

fund authority by M/s. Allied Concern, his partnership firm.

#7. It was submitted that the statements made in the election Page No.# 9/52 petition can be compartmentalized under 9 (nine) parts, viz., (1) recitals (paragraphs 1 to 8); (2) general statements on law (paragraphs 25, 30, 32 and 33); (3) limitation (para 35); (4) security deposit (para 37); (5) bona fide (para 38); (6) submissions (paragraphs 26 and 28 to 34); (7) falsity of educational qualification [paragraphs 9, 9(A), 9(B), 10 to 14, 16, 20, 21, 22 and 26]; (8) suppression of bank account details with details of bank liability [paragraphs 9, 9(C), 17, 26 and 28]; (9) suppression of statutory dues on account of provident fund [paragraphs 9(D), 15, 16 and 26]. In the said context, it was submitted that in the election petition, there is no pleadings on material facts and lack of particulars on the allegations of “corrupt practice of undue influence.” In this regard, it was submitted that as per the provision of Section 87(1) of the RP Act, it was provided that subject to the provisions of the said 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 the procedure applicable under the Code of Civil Procedure to the trial of suits. Accordingly, it was submitted that the election petition must comply with the requirements of sections 83 and 33 of the RP Act read with Rule 4 and Form no. 2A to 2E of the Conduct of Election Rules, 1961 (hereinafter referred to as the “1961 Rules”), read with the provision of Order VI, Rule 2 CPC, Order VI, Rule 4 CPC, Order IV, Rule 2 CPC. Submissions on lack of material facts and particulars of corrupt practice of undue influence:

#8. Referring to the affidavit in support of the allegations of “commission of corrupt practice of undue influence”, it was submitted that statements made in paragraphs 9(B), 11 (partly), 12 (partly), 13, 14, and 20 pertain to allegations of “corrupt practice of undue influence”, and that the particulars of such “corrupt practice” as contained in paragraphs 10, 11 (partly), Page No.# 10/52 16, 20, 21, 25, 26, 27 and 28 of the schedule annexed are verified to be true to knowledge, and that the statements made in paragraphs 9(A), 9(C), 9(D), 14 and 16 about the commission of “corrupt practice of undue influence” and particulars of such corrupt practice given in the said petition and in paragraphs 14, 15, 16 (partly), 17, 20 and 22 of the schedule annexed are verified to be true to the information derived by the petitioner from Rehan Uddin Laskar and Anamul Haque (respondent no. 7). In the said context, it was submitted that the petitioner has not pleaded material facts as to who, how, in what manner, on whom, and in which places, the alleged corrupt practice of undue influence has been committed.

#9. It was submitted that the Supreme Court of India, while directing that disclosure of certain information are to be made, had not diluted and/or done away the requirement of Section 83 of the RP Act read with the provision of Order VI, Rule 4 of the Code of Civil Procedure (CPC for short). In support of his submissions, the learned senior counsel for the respondent no. 1 has cited the following cases, viz., (i) Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541 (paras 15, 17 & 18), (ii) U.S. Sasidharan v. K. Karunakaran & Anr., (1989) 4 SCC 482 (para-29), (iii) F.A. Sapa & Ors. v. Singora & Ors., (1991) 3 SCC 375 (paras 15-18, 21 & 29).

#10. It has further been submitted that in the affidavit appended to the election petition as per requirement of Rule 94-A of the Conduct of Election Rules, 1961 (1961 Rules for short), paragraphs relating to pleading of material particulars have not been identified, which according to the learned senior counsel for the respondent no. 1, is a substantial and non-curable defect. Hence, it has been submitted that there is lack of triable issues in respect of Page No.# 11/52 “corrupt practice of undue influence”. Hence, it has been submitted that the election petition was liable to be rejected. Submissions on falsity of educational qualification:

#11. By referring to the statements made in column-9 of the affidavit in Form 26 of the 1961 Rules, it was submitted that the allegations against the respondent no. 1 was that in the 2021 elections, he had made a false claim of having educational qualification of Bachelor of Arts (i.e. B.A.), and that in the previous Legislative Election held in the year 2016, the respondent no. 1 had projected that he was having highest educational qualification of Diploma in Engineering.

#12. In the said context, it has been submitted that allegations regarding falsity of educational qualification of the respondent no.1 has been made in paragraphs 9, 9(A), 9(B), 10 to 14, 16, 20 to 22 and 26 of the election petition, and reference was made to the affidavit sworn by the respondent no.1 on 11.03.2021, wherein he had declared his educational qualification as “B.A. passed from Ch. Charan Singh University, Meerut in the year 2019”. It was submitted that one of the allegations made in paragraphs 9 and 9(A) of the election petition was to the effect that the affidavit in Form 26 filed by the respondent no. 1 along with his nomination paper was invalid and that the defect was substantial in nature as it contained false statements, suppression and misrepresentation of facts with regard to educational qualification. It was also alleged that the respondent no. 1 did not mention about his so-called technical qualification of Diploma in Civil Engineering, in the nomination paper for 2021 election, which the respondent no.1 had disclosed in the nomination of 2016 elections. It was submitted that while the statements made in paragraph 9 Page No.# 12/52 of the election petition was verified to be from knowledge, the statements made in paragraph 9(A) and 9(B) is verified to be partly from knowledge and partly from documents annexed. Hence, it has been submitted that there was total absence of clarity as to which part of the allegations were verified from knowledge and which part was verified to be true as per documents. It was further submitted that the petitioner was heavily relying on a RTI reply (Annexure-8 to election petition) obtained through RTI reply by BJP worker, but there is no explanation that although in the affidavit filed along with the election petition (Annexure-6 to the election petition), the respondent no.1 had disclosed both his permanent and his temporary address, while the RTI query was not made by providing permanent address of the respondent no.1. Hence, it was submitted that as the RTI reply was based on incorrect and misleading RTI query, the said RTI reply could not be called cogent and reliable material to prove the allegations.

#13. By referring to statements made in para-10 of the election petition, it has been submitted that Annexure-8 to the election petition was the basis of alleging falsity of educational qualification, but in Annexure-8 to the election petition, the RTI reply does not disclose that the B.A. qualification of the respondent no.1 was false. Moreover, it was submitted that by the said RTI reply, the applicant was asked to provide better particulars of the respondent no.1. Hence, it has been submitted that Annexure-8 to the election petition would not constitute cogent and reliable material to sustain the connected election petition. It was further submitted that Anneuxre-8 to the election petition is not a reliable document and in that regard by referring to the RTI application (Annexure-7 of the election petition), it has been submitted that the RTI applicant had signed the said RTI application in two places, and the date of Page No.# 13/52 application was mentioned as 04.05.2021. However, in the forwarding letter dated 23.04.2021, the date of RTI application is mentioned as 06.04.2021. Accordingly, it is submitted that the said RTI reply (Annexure-8) cannot be accepted to constitute cogent and reliable material. Therefore, it has been submitted that in the absence of any cogent and reliable materials, it cannot be said that there was any cause of action for the connected election petition. In support of the said statement, reliance is placed on the case of Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 (para-12 and 13).

#14. It was submitted that when, how, where and by whom the RTI application and RTI reply were handed over to the election petitioner is not disclosed in the election petition or in para-10 thereof where the petitioner claims that the falsity of educational qualification of the respondent no.1 was established from Annexure-8 to the election petition. It is further submitted that statement made in para-10 of the election petition is partly affirmed from knowledge.

#15. It was submitted that although in para-11 of the election petition, it is alleged that the respondent no.1 was only H.S.S.L.C. pass, but the said para-11 is partly affirmed from knowledge and partly from documents. It has also been submitted that in the election petition the petitioner has not disclosed the document on which he had relied to sustain his allegation that the respondent no.1 did not have a Diploma in Engineering. Accordingly, it has been submitted that the said allegation is not supported by any cogent and reliable materials. It was further submitted that in para-11 of the election petition it was stated that “By falsely claiming himself to be a person having a qualification of Page No.# 14/52 BA, the respondent has mislead the voters of LA-10 Sonai LAC and unduly influenced them.” However, nowhere in the election petition, any material facts have been disclosed as to how, where, or by whom corrupt practice of undue influence was committed.

#16. It has been submitted that in the election petition, it was alleged that on 15.03.2021, he as well as the respondent no.8 had raised an objection before the Returning Officer that the respondent no.1 did not pass B.A. from Chaudhary Charan Singh University. However, the statement made in para-12 of the election petition is affirmed as corrupt practice of undue influence. Therefore, in substance, the petitioner is seeking this Court to embark upon fishing and roving inquiry regarding commission of corrupt practice of undue influence as well as in respect of the educational qualification of the respondent no.1. In the said context, reliance is placed on the case of Dharti Pakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Suppl. SCC 93 (paras 3, 8, 14, 18, 26 & 28).

#17. It has been submitted that in para-12 of the election petition, a statement has been made regarding written objection submitted by the petitioner as well as another candidate namely, Karim Uddin Barbhuiya (respondent no.8) before the Returning Officer about falsity of claim of educational qualification of respondent no.1 as B.A. It has been submitted that the said statement is stated to be material facts constituting corrupt practice of undue influence, but the petitioner has not disclosed as to who, how, when and in what manner the alleged corrupt practice of undue influence was committed. In this regard reliance is placed on the case of D. Venkata Reddy v. R. Sultan and ors., (1976) 2 SCC 455 (para-4).

#18. It has been submitted that in the complaint made by respondent Page No.# 15/52 no.8 before the Returning Officer (Annexure-9 to the election petition), the allegation is that from the search made in the website of Chaudhary Charan Singh University does not even offer B.A. course in its curriculum. In this regard an example was cited that the Gauhati University does not impart education in B.A., which is an under-graduate course. Therefore, the correct internet search should have been made to find out whether or not the colleges under and/or recognized by the Chaudhary Charan Singh University offer B.A. course. Hence, it is submitted that the complaint dated 15.03.2021 by the respondent no.8 (Annexure-9 to the election petition) does not constitute cogent and reliable materials to sustain the allegation of corrupt practice of undue influence.

#19. By referring to statement made in para-13 of the election petition, it has been alleged that on coming to know about the objection raised by the petitioner and respondent no.8, other candidates had also raised objection and in para-13 of the election petition, it has been alleged that same was commission of corrupt practice of undue influence. However, it has been submitted that there is nothing in the election petition to show as to how an objection by another candidate can constitute commission of corrupt practice of undue influence on part of the respondent no.1.

#20. It has been submitted that in para-14 of the election petition, it is alleged that the Returning Officer had failed to exercise his authority under Section 36 of the RP Act as the said authority did not call upon the respondent no.1 to produce further materials regarding his educational qualifications. In the said context it has been submitted that there is no statement in the election petition as to what according to the petitioner would constitute “further materials”. It has been submitted that the respondent no.1 was never called to Page No.# 16/52 produce any document. In this regard the learned senior counsel for the respondent no.1 has referred to verification at page-50 of the election petition and it is submitted that statement made in para-15 is stated to be information derived from document and in the said context it was submitted that complaint dated 15.03.2021, submitted by the respondent no.8 is merely a self-serving statement, which would not constitute cogent and reliable material to form the basis of the allegation relating to educational qualification of the respondent no.

#1. In the said context it was submitted that in the affidavit sworn in support of the election petition (page 48-49 of the election petition), the correctness of the paragraph made in para-14 has not verified on oath. It was also submitted that statement made in para-14 is sworn in the affidavit as material facts about the commission of the corrupt practice of undue influence. However, para-14 of the election petition does not disclose where, how, when or by whom corrupt practice of undue influence was allegedly committed.

#21. By referring to the statement made in para-21 of the election petition, it was submitted that the petitioner had made an RTI application in respect of which reply was awaited and accordingly, it has been submitted that the present election petition has been filed on a presumptive cause of action.

#22. By referring to statement made in para-22 of the election petition, it has been submitted that a mention has been made of a FIR dated

20.01.2021, filed by a voter, which was registered as Sonai P.S. Case No. 27/2021 under Sections 420/468/471 of the I.P.C. In the said FIR it was alleged that the respondent no. 1 had submitted a false affidavit in Form-26 in 2016 Assam Legislative Assembly Elections regarding his educational qualification of Diploma in Civil Engineering. In the said regard, it was submitted that para-22 Page No.# 17/52 was affirmed from documents, but the same set of statements are partly verified at page-50 of the election petition. However, in the affidavit under Rule 94-A of the 1961 Rules (at page-51 of the election petition), para-22 is sworn to be regarding particulars of corrupt practice. Accordingly, it has been submitted that statements in para-22 of the election petition would not constitute material facts constituting improper acceptance of nomination paper for 2021 election. It was also stated that the disclosure of qualification of Diploma in Civil Engineering by the respondent no.1 in the 2016 election would have no bearing in respect of the cause of action, if any, for this election petition.

#23. By referring to para-26 of the election petition, it has been submitted that in the affidavit sworn in support of the election petition (at page 48-49 of the election petition), the statement made in para-26 are stated submissions of the petitioner. However, as per verification (page 50 of the election petition) the same statement has been verified to be based on knowledge. It has also been submitted that although the petitioner claims that statement made in para-26 is material facts, but has not spelt out as to whether statement relating to material facts constituting improper acceptance in nomination paper or material facts relating to corrupt practice of undue influence.

#24. Accordingly, it has been submitted that the election petition fails to disclose cogent and reliable materials to sustain the allegations of corrupt practice of undue influence and therefore, the election petition was liable to be rejected. Suppression of bank account details with details of bank liability:

#25. The learned senior counsel for the respondent no.1 has Page No.# 18/52 submitted that the statement regarding the allegations of the outstanding bank liability are contained in para-9, 9(C), 17, 26 and 28 of the election petition.

#26. In respect of the allegations of suppression of bank account details with details of bank liability, and suppression of non-payment of provident fund dues, it was submitted that as per the pleadings in the election petition, the petitioner was a partner of M/s. Allied Concern, which had an outstanding loan, but the said bank account as well as the outstanding loan liability in the said account were concealed/ withheld and not disclosed in the affidavit in Form 26 submitted by the respondent no.1 along with his nomination papers.

#27. It has been submitted that in paragraphs 9 and 9(C) of the election petition, it is stated that the respondent no.1 is a partner in M/s. Allied Concern, which availed loan and financial accommodation like cash, credit in two bank accounts and the said bank accounts were declared as Non- Performing Assets (NPA for short) on 31.03.2018 and 31.10.2018 and the total liability in these two bank accounts was more than Rs.10 crore (i.e. Rs.4,93,44,848/- + Rs.5,22,69,565/-). Moreover, it has been alleged in the election petition that the default has not been disclosed in the nomination form of the respondent no.1 (Annexure-6). It was also submitted that in the affidavit accompanying the election petition, the statement made in para-9(C) of the election petition was sworn as information based on documents and was also verified as statement based on document. It has been also submitted that it has not been stated in the election petition that from which document the petitioner has derived his knowledge. In this regard, it is submitted that in the nomination paper of respondent no.1, he had disclosed the liabilities in the said accounts Page No.# 19/52 and therefore, the allegation of non-disclosure was not sustainable.

#28. It has further been submitted that in para-26 of the election petition, it was alleged that information was withheld about taking loan from UBI and in this regard the names of few voters who were allegedly being mislead are disclosed to show that those voters were influenced. In the said context it was submitted that the statement made in para-26 of the election petition is verified on oath as submissions before the Court and in the affidavit regarding commission of corrupt practice of undue influence, statement made in para-26 are sworn as true to the knowledge of the petitioner. Thus, it has been submitted that it was not clear to the respondent no. 1 as to the exact nature of the allegation against him so as to effectively respond to the election petition.

#29. By referring to para-28 of the election petition, it has been submitted that suppression of bank liability is covered by “corrupt practice of undue influence” under section 123(2) of the RP Act. However, in para-9 of the election petition, non-disclosure of bank liability is alleged to be a “defect of substantial character”, which is covered by Section 36(4) of the RP Act. Moreover, it is submitted that in the affidavit (at page-48 of the election petition), the petitioner had verified the statement made in para-28 was true to his information derived from document annexed to the election petition. However, in verification (at page-50 the election petition), statement made in para-28 is verified to be submission before the Court. It has also been pointed out that statement made in para-28 of the election petition was verified in the affidavit filed under Rule 94-A of the 1961 Rules (at page 51 of the election petition) to be “particulars of such corrupt practice of undue influence” but in para-9(C) of the election petition, it is stated that it was substantial defect, Page No.# 20/52 which is otherwise covered under section 36(4) of the RP Act.

#30. Moreover, by referring to the statement made in para-17 of the election petition as well as contents of Annexure-14 of the election petition, it is submitted that another candidate, namely, Anamul Hoque (respondent no.7) had made a compliant dated 18.03.2021 before the Chief Electoral Officer that outstanding loan of the respondent no.1 was Rs.6 crore and it was further stated that the loan was either in the name of respondent no.1 or in the name of the firm, and therefore, it has been submitted that the said statement does not tally with the allegations made in para-9(C) of the election petition, where outstanding loan is mentioned as Rs.10 crore in respect of two bank accounts. It is also submitted that Annexure-13 to the election petition, relating to allegations made in para-17 of the election petition, does not disclose if any money was shown outstanding against the respondent no. 1. Moreover, it is also submitted that in the affidavit (at page-48 of the election petition), the statement made in para-17 is verified as information derived from the document, and verified from knowledge in the verification (at page-50 of election petition).

#31. Accordingly, it is submitted that the materials referred to in the election petition with regard to allegation of outstanding bank liability do not disclose any cause of action and by making those vague allegations, the petitioner is seeking fishing and roving inquiry from the Court, which ought not to be done. Allegation of Provident Fund default committed by the Firm of the respondent no.1, namely, M/s. Allied Concern:

#32. In this regard it has been submitted that the allegation in respect Page No.# 21/52 of provident fund in default are made in paragraph 9(D), 15, 16 and 26. It is submitted that as per statement made in para-15 of the election petition, one Rehan Uddin Laskar had filed RTI petition to seek information about provident fund default of M/s. Allied Concern. In the said context it was submitted that the statement made in para-15 of the election petition are neither affirmed in the affidavit filed in support of the election petition (pages 48-49 and 51-52 of the election petition), nor it is verified to be true (at page 50 of the election petition). Therefore, by placing reliance on the case of Kisan Shankar Kathore Vs. Arun Dattatray Sawant & Ors., (2014) 14 SCC 162 (para-38), it is submitted that non-disclosure of disputed Government dues was not a substantive defect in the nomination. It is also submitted that the RTI reply annexed to the election petition does not mention about any existing default but it refers to an existing dispute.

#33. By referring to the various statements made in the election petition as well as the documents annexed thereto, as well as the (i) verification; (ii) affidavit; and (iii) affidavit in Form 25, it has been submitted that on a conjoint reading of the same, it is not clear as to whether a particular allegation was verified on the basis of record or knowledge. In this regard, it has been submitted that as per the election laws developed by various judgments of the Supreme Court of India, it was the mandate of the law that the pleadings must be specific in so far as it related to “material fact” substantiated with “cogent material”, which may also be supplemented by material particulars. Accordingly, it has been submitted that in the absence thereof, the present election petition is liable to be rejected, as it is a defect of substantial nature and is not a curable defect. Page No.# 22/52 Submissions as to how the statements made in the election petition are barred by law:

#34. It has been submitted that in India the principles of a ‘casus omissus’ is not followed in the trial of election petition. Accordingly, it has been submitted that as the instant grounds for presentation of election petition has not been spelt out by the petitioner, the election petition has been presented in violation of the requirements of Section 81(1) of the RP Act and therefore, the election petition was liable to be rejected. It has been submitted that as the election of the respondent no. 1 has been challenged by alleging corrupt practice of undue influence, the election trial partakes the character of proceeding which is quasi-judicial in nature. In this context, reliance has been placed on the case of (i) Muniraju Gowda P.M. v. Munirathna & Ors., (2020) 10 SCC 192 (paras 14-15), (ii) Samant N. Balakrishna & Anr. v. George Fernandez & Ors., (1969) 3 SCC 238 (paras 35 & 37), (iii) F.A. Sapa & Ors. (supra) (paras 15-18 & 29).

#35. It has been submitted that Section 80 of the RP Act lays down that “no election shall be called in question except by an election petition presented in accordance with the provisions of this part.”, i.e. Part-VI (Sections 79 to 122). In the said context, it has been submitted that though in the election petition it has been alleged that there was corrupt practice of undue influence, the affidavit in support of such allegations is not in the form prescribed under Section 94-A of the 1961 Rules. Hence, it has been submitted that as the election petition has not been presented in accordance with Section 81(1) of RP Act and Chapter-VIII-A, Rule 1 of the Gauhati High Court Rules, the election petition was liable to be rejected and/or dismissed under Section 86(1) of the RP Act. In support of the said contention, reliance has been placed on the Page No.# 23/52 case of F.A. Sapa & Ors. (supra). Alternatively, it has been submitted that as per the affidavit in Form 25 under Rule 94-A of the 1961 Rules does not disclose pleading of material particulars in support of the allegations of corrupt practice, there is no cause of action with triable issues in this election petition. In support of the said submission, reliance is placed on the case of U.S. Sasidharan (supra) (paras 12, 15-17 & 29).

#36. It has been submitted that the schedule relating to allegations of corrupt practice under Form-25 does not contain any paragraph and therefore, the defect is substantial in nature and not curable.

#37. It has been submitted that the basis of the pleadings in the plaint is vague. The statements in some of the paragraphs are verified to be true to knowledge, and also sworn to be matters of record and/or verified as submissions before the Court for which the election petition is liable to be rejected at the threshold. In this regard, reliance has been placed on the case of L.R. Shivaramagowda & Ors. v. T.M. Chandrashekhar & Ors., (1999) 1 SCC 666 [paras 6, 16(a)].

#38. It has been submitted that owing to failure on part of the petitioner to pray for (i) a declaration that the result of the election has been materially affected due to improper acceptance of nomination paper of the respondent no. 1 due to falsity in affidavit, and (ii) a declaration that the respondent no. 1 had committed corrupt practice of undue influence, the election petition was liable to be dismissed. In the said context, it has been submitted that the provisions of Section 98 and 99 of the RP Act has to be conjointly read together. Page No.# 24/52

#39. It has also been submitted that the copy of the election petition, as served to the petitioner does not contain endorsement by the Notary and/or Oath Commissioner.

#40. It has also been submitted that the copy of the objection submitted by the petitioner to this interlocutory application also does not contain verification as required under Order VI, Rule 15 CPC in violation of the requirement of Order IV, Rule 1 CPC.

#41. Apart from the cases mentioned herein before, the learned senior counsel for the respondent no. 1 has also cited the following cases, viz., (i) G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 (paras 2, 36, 37, 39, 40, 44, 47, 52 & 62), (ii) Mahendra Pal v. Ram Dass Malangar & Ors., (2000) 1 SCC 261 (para-7), (iii) Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169 (paras 54, 55, 57), (iv) Shiv Charan Singh v. Chandra Bhan Singh, (1988) 2 SCC 12, (v) Azhar Hussain v. Rajiv Gandhi, (1986) Suppl. SCC 315 (para 8-12, 14, 21, 22, 25, 31, 35, 38), (vi) M. Karunanidhi v. H.V. Hande & Ors., (1983) 2 SCC 473 (paras 27, 32), (vii) Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 (paras 15, 17, 19-22 & 25), (viii) Sahodrabai Rai v. Ram Singh Aharwar & Ors., AIR 1968 SC 1079 (para 12), (ix) Union of India v. Association of Democratic Reforms, (2002) 5 SCC 294 (paras 48 and 49), (x) PUCL v. Union of India, (2003) 4 SCC 399 (paras 73 and 122), (xi) Resurgence India v. Election Commission of India, (2014) 14 SCC 189 (paras 13, 27 and 29), (xii) Krishnamoorthy v. Sivakumar & Ors., (2015) 3 SCC 467 (paras 42-F, 75 and 94), (xiii) Mairembam Prithviraj @ Prithviraj Singh v. Pukhrem Sharat Chandra Singh, (2017) 2 SCC 487 (paras 2 and 14), (xiv) Lok Prahari, Through its General Secretary S.N. Shukla v. Union of India & Ors, (2018) 4 SCC 699 (para 81), and Page No.# 25/52 (xv) Public Interest Foundation v. Union of India & Anr. (2019) 3 SCC 224 (para 116).

#42. The learned senior counsel for the respondent no. 1 has submitted a written synopsis of argument, which is kept on record. Submissions by the learned senior counsel for the election petitioner (opposite party in this interlocutory application):

#43. The learned senior counsel for the petitioner has submitted that the petitioner has challenged the election of the respondent no. 1 on the grounds of (i) improper acceptance of nomination paper, which is covered by Section 100(1)(d)(i) of the RP Act; and (ii) corrupt practice of undue influence, which is covered by the provision of Section 100(1)(d) of the RP Act.

#44. It has been submitted that even if the allegations as envisaged under Section 123 is not there in the election petition, if the petitioner is able to prove suppression of material facts, the commission of corrupt practice stands proved.

#45. It has been submitted that there are sufficient pleadings regarding material facts as well as material particulars. In the said context, by referring to the RTI reply annexed to the election petition, the reply dated

23.04.2021 (Annexure-8) (English translated version) is that “… in respect of the B.A. Examination of this University (Private and Institutional) for the year 2019, no candidate namely Karim Uddin Barbhuiya s/o Late Rahim Uddin Barbhuiya was enlisted. Even then, if any serial number or roll number of Karim Uddin Barbhuiya s/o Late Rahim Uddin Barbhuiya is made available, detailed description may be given in that regard.” Thus, the reply was to the effect that Page No.# 26/52 the respondent no. 1 was not an examinee in the B.A. Examination for the year 2019 from Chaudhary Charan Singh University. Therefore, the election petition contains pleading that the respondent no. 1 had made false claim for possessing educational qualification of B.A.

#46. It has also been submitted that the election petition contains pleadings to the effect that the provident fund liability of the petitioner remained unpaid, which is Government dues. Therefore, the Court has power to hold that the nomination paper of the respondent no. 1 was defective. It has been also submitted that the Court would merely see if any amount of Government payment is due or not and at this stage Court would not examine the standard of proof.

#47. It has been submitted that the petitioner has specifically pleaded regarding misrepresentation and suppression of material facts. Therefore, there is cause of action on part of the petitioner to challenge the election of the respondent no. 1.

#48. In support of his submissions, the learned senior counsel for the petitioner has cited the following cases, viz., (i) Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCC 850, (ii) I.T.C. Ltd. v. Debts Recovery Appellate Tribunal,