Election Petition No. 11 of 2019 · Bombaybench High Court
Case Details
2024:BHC-AUG:20257 1 Appln.9.23&5.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPLICATION IN EP NO. 9 OF 2023 (Exhibit 11) IN ELECTION PETITION NO.11 OF 2019JAGDISHCHANDRA RAMESH VALVIVERSUSLATABAI CHANDRAKNT SONAWANE AND ORS…WITH…APPLICATION IN EP NO. 5 OF 2024 (Exhibit 23) IN ELECTION PETITION NO.11 OF 2019JAGDISHCHANDRA RAMESH VALVIVERSUSLATABAI CHANDRAKANT SONAWANE AND OTHERS…Advocate for Election Petitioner: Mrs. Priyandra G. Sontakke & Mr. Gajanan K. Sontakke...Advocate for the Applicant at Exhibit 11 / Respondent No.1 in EP /Returned Candidate: Mr. Mahesh S DeshmukhAdvocate for the Applicant at Exhibit 23 / Respondent No.5 in EP:Mr. Rahul R. Karpe...CORAM:ARUN R. PEDNEKER, J.Date:03.09.2024ORDER:1.The present Election Petition is filed challenging theelection of the returned candidate / respondent no.1 as the Memberof Maharashtra Legislative Assembly from 10-Chopda (S.T.) 2 Appln.9.23&5.24Assembly Constituency, in the State of Maharashtra. The returnedcandidate / respondent no.1 claims to belonging to “Tokre Koli”,Scheduled Tribe. In The Constitution (Scheduled Tribe) Order, 1950,Part IX – Maharashtra, “Tokre Koli” is mentioned at Serial No.28.2.The elections to the Maharashtra Legislative Assemblywere held on 21.10.2019, counting was held on 24.10.2019,returned candidate belonging to a political party Shivsena wasdeclared elected. The election petitioner belongs to the NationalistCongress Party. The elected candidate got 78137 votes, whereas theelection petitioner receives the second highest 57608 votes.3.Although, the election was held in the year 2019 andthe petition is filed within limitation, the matter was not moved withurgency and was pending notice to all the respondents.4.During the pendency of the Election Petition before thiscourt, the caste certificate issued to the returned candidate wasinvalidated and the same is confirmed upto the Hon’ble SupremeCourt. After the rejection of the caste validity certificate of thereturned candidate was confirmed by the Hon’ble Supreme Court,the writ petition was filed before the Division Bench of this Court for
Legal Reasoning
3 Appln.9.23&5.24unseating the returned candidate by invoking powers of this court.In Writ Petition No.12336 of 2022, dated 13.01.2023, this court atpara 3 has observed as under:“3.By invoking the powers of this Court under Article226 of the Constitution of India, the petitioner isseeking a declaration about the intervenor who hasbeen elected as a member of the State LegislativeAssembly from 10 – Chopda (ST) constituency in theelections held in 2019, was not qualified to file hernomination from the reserved category when herscheduled tribe certificate has been cancelled and thedecision has reached finality up to the Supreme Court.”This court in Writ Petition No.12336 of 2022, dated13.01.2023, at para 12 and 15 has observed as under and dismissedthe petition:“12.…In the matter in hand, the petitioner hasalready filed an election petition and should havewaited for the result instead of circuitously seeking thesame relief by requesting this Court to exercise thepowers under Article 226. For this reason alone, thepetition is liable to be dismissed.15.Consequently, merely because the scheduled tribecertificate of the intervenor has been cancelled and thedecision has reached finality, the consequences are notautomatic as is contemplated under section 10 and 11of the Maharashtra Act No. XXIII of 2001. The ordeal ofresorting to the election petition under section 80-A ofthe R.P. Act will have to be undergone for unseating areturned candidate to State Legislative Assembly whowas not qualified to take part in the election to the 4 Appln.9.23&5.24Legislative Council which specifically lays down that noelection shall be called in question except by an electionpetition presented in accordance with the provisionsunder that Act.”The SLP filed against the above order of the DivisionBench in Writ Petition No.12336 of 2022, dated 13.01.2023 is alsodismissed.5.After invalidation of the caste certificate of respondentno.1 / returned candidate this Election Petition is taken up withsome urgency. Respondent no.5 was served on 23.06.2023 andrespondent no.7 was served by paper publication on 19.01.2024.6.Respondent no.1 / returned candidate filed anapplication bearing number Application in EP No.9 of 2023, Exhibit11, under Order VII Rule 11 of The Code of Civil Procedure, 1908(CPC) read with Section 82 of the Representation of the People Act,1951 (R.P. Act) for dismissal of the election petition. The respondentno.5 on being served on 23.06.2023, appeared and also filedApplication in EP No.5 of 2024, Exhibit 23, for dismissal of theelection petition. It is contended in the application at Exhibit 11 asunder: 5 Appln.9.23&5.24“A)That, Election Petition proper as well as affidavitfiled alongwith it do not specify raises/sets out anyground/grounds specified under sub section (1) of Sec100 and Sec 101 as compulsorily required under Sec. 81of The Representation of the People Act, 1951 whilepresenting Election Petition.B)That, verification made by petitioner to theElection Petition proper as well as affidavit filedalongwith petition proper is not made as compulsorilyrequired under clause (c) of sub section (1) of section83 of The Representation of the People Act, 1951.C)That, in view of the fact that affidavit filed underForm 25 of the Conduct of Election Rules, 1961 by thepetitioner the same attracts clause (b) of sub section (1)of Section 83 as well as proviso to clause (c) of subsection (1) of section 83 of The Representation of thePeople Act, 1951 and Rule 94-A of Conduct of ElectionsRules, 1961 claiming/ alleging corrupt practice by thepetitioner against respondent no.1. Perusal of affidavitunder Form 25 filed by the petitioner suggest purportedallegation of corrupt practice by respondent no.1, assuch is not an affidavit as compulsorily required byproviso to Clause (c) of Sub Section (1) of Section 83 ofThe Representation of the People Act, 1951.D)That, concise statements of the material facts onwhich the petitioner relies, compulsorily requires byClause (a) of Sub Section (1) of Section 83 of TheRepresentation of the People Act, 1951 being notspecifically contained in the Election Petition proper aswell as affidavit filed alongwith it, it suffers for noncompliance and / or violation of mandatory provisionsunder Chapter II of The Representation of the PeopleAct, 1951 and prescribed procedure under the Conductof Elections Rules, 1961. 6 Appln.9.23&5.24E)That, affidavit made to the Election Petitionproper as well as affidavit filed along with by thepetitioner dated 04.12.2019 is no affidavit as requiredby law.F)That, the contents raised which claimed to belegal and factual submissions/ pleadings in para no.XXIV to XXXIII as per verification of Election Petitionproper are vague, confusing which do not specifyanything as required by the provisions of TheRepresentation of the People Act, 1951 and the Conductof Election Rules, 1961.G)That, the Election Petition filed by petitionersuffers from non disclosure of mandatory declaration, inas much as suffers due to suppression of material factswhile presenting Election Petition under Section 80 and81 of The Representation of the People Act, 1951.H)That, additional relief claimed by the petitioner,particularly relief claimed under Clause (B) under parano. XLII of Election Petition proper for declaration ofpetitioner to be duly elected to the Office of Member ofMaharashtra Legislative Assembly from 10-ChopdaAssembly Constituency, in the State of Maharashtradeclared on 24.10.2019 is not claimed by fulfillingmandatory requirement as required under the provisionof The Representation of the People Act, 1951 and theConduct of Elections Rules, 1961.I)That, reference of Section 100 of TheRepresentation of the People Act, 1951 in variousParagraphs of Election Petition proper as well asaffidavit filed alongwith it do not specify any particularclause of Sub Section (1) under Section 100 of TheRepresentation of the People Act, 1951, as such nocompliance being made by the petitioner while 7 Appln.9.23&5.24presenting Election Petition which is mandatory andcompulsory under Section 81 of The Representation ofthe People Act, 1951, instant Election Petition suffers fornon compliance and / or violation of mandatoryprescribed procedure.J)That, the source of information and collection ofdocuments as disclosed and claimed in the verificationof Election Petition proper as well as affidavit filedalongwith it is not a source of information as well ascollection of documents relied and filed by the Petitionerand that too without submitting any proof to that effectalongwith Election Petition proper.2.In view of above reasons and grounds, there isnon compliance as well as violation of mandatoryprescribed procedure while presenting Election Petitionby the Petitioner as required under Chapter Ii of TheRepresentation of the People Act, 1951 and Conduct ofElections Rules, 1961, as such instant Election Petitionpresented by the Petitioner is not maintainable,entertainable and accordingly liable to be dismissed /rejected under Order VII Rule 11 of The Code of CivilProcedure, 1908 and accordingly it be dismissed withcosts.”7.Heard Mr. Mahesh S. Deshmukh, learned counsel for thereturned candidate / applicant in Exhibit 11 and respondent no.1 inelection petition. The learned counsel in addition to the groundsraised in the application at Exhibit 11, orally and by filing writtensubmissions, submitted that for the elections to the State Legislature,Chapter-II of the R.P. Act deals with the qualification of themembership of State Legislature and particularly Section 5(a) of the 8 Appln.9.23&5.24R.P. Act, which provides for qualification to contest elections fromthe reserved seat of the Scheduled Caste (SC) or Scheduled Tribe(ST), whereby such candidate is to be member of any of those castesor tribes and an elector for any assembly constituency in that State.Mr. Deshmukh, learned counsel further submits thatSection 33(2) states that, in respect of seat reserved a candidateshall not be deemed to be qualified to be chosen to fill that seatunless his nomination paper contains a declaration by him specifyingthat he belongs to the particular caste or tribe of SC or ST of theState.The learned counsel submits that conjoint reading ofabove referred provisions of Section 5(a) and 33(2) of the R.P. Act, inrelation to election to State Legislature, wherein a particularconstituency is reserved either for SC or ST, the candidate is obligedonly to make a declaration that he / she belong to specifiedscheduled caste or scheduled tribe, as the case may be and nothingmore. The R.P. Act does not contain provision in addition todeclaration to be made by candidate about his specified caste or tribenotified as SC or ST in relation to the concerned State. It is submitted that Section 36(2) of the R.P. Act controlspower of Returning Officer to reject nomination. Section 36(2)(a) of 9 Appln.9.23&5.24the R.P. Act empowers the Returning Officer to reject the nominationin case candidate either is not qualified or is disqualified for beingchosen to fill the seat under Article 84, 102, 173 and 191 of theConstitution of India or Part-II of the R.P. Act i.e. qualifications anddisqualifications of membership or as per Section 36(2)(b) if there isfailure to comply with any of the provisions of Section 33 orSection 34.It is further submitted that, the instant case relates toqualification of membership of the legislative assembly i.e. Section 5of the R.P. Act read with Article 173 (c) of the Constitution of India.It is further submitted that conjoint reading of Section5(a) and Section 33(2) of the R.P. Act clearly postulates that for acandidate contesting election for reserved seat, only declarationabout his / her caste or tribe which is notified as SC or ST needs tobe made by the candidate contesting election from reserved seat. It is further submitted that, in view of Section 5(a) readwith Section 33(2) of the R.P. Act and Rule 4 together with Part-III of‘Form 2B’ creates only obligation over the candidate contesting thereserved seat to make a declaration about his caste / tribe. There isno further requirements of producing caste certificate or castevalidity certificate. Once, such a declaration is made by the candidate 10 Appln.9.23&5.24as contemplated in Part-III of ‘Form 2B’, the returning officer doesnot have jurisdiction to inquire into a particular caste or tribe of thecandidate so as to reject the nomination.8.Mr. Deshmukh, learned counsel for the returnedcandidate / applicant in Exhibit 11 and respondent no.1 in electionpetition relies upon the following judgments:[1] Kanimozhi Karunanidhi Vs. A. Santhana Kumar &Ors., AIR OnLine 2023 SC 368[2] Kanimozhi Karunanidhi Vs. A. Santhana Kumar &Ors., [2019] 0 Supreme (Mad) 2190[3] Khan Mohammed Arif Lallan Vs. Dilip BhausahebLande, Application (L) No.20734 of 2021 in EP No.27Of 2019[4] Ram Sukh Vs. Dinesh Aggarwal, AIR 2010 SC 1227[5] Anil Vasudev Salgaonkar Vs. Naresh KushaliShigaonkar, 2019 AIR SCW 6812[6] V. Narayanaswamy Vs. C.P. Thirunavukkarasu, AIR2000 SC 694[7] Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253[8] Hardwari Lal Vs. Kanwal Singh, AIR 1972 SC 515[9] Samant N. Balakrishna, etc. Vs. George Fernandezand others etc., AIR 1969 SC 1201[10] Pendyala Venkata Krishna Rao Vs. Pothula RamaRao & Others, 2005 SCC OnLine AP 99[11] Karim Uddin Barbhuiya Vs. Aminul Haque Laskarand others, I.A. (Civil)/1278/2021, Dated 26.04.2023of the Gauhati High Court[12] Karim Uddin Barbhuiya Vs. Aminul Haque Laskarand others, AIR 2024 SC 2193[13] Sopan Sukhdeo Sable and others Vs. AssistantCharity Commissioner and others, (2004) 3 SCC 137[14] Dr. Sharadchandra s/o Ganpatrao Wankhede Vs.Raosaheb S/o. Dadarao Danve and others, EP/2/2019with connected petition, Dated 05.07.2024 of BombayHigh Court, Aurangabad Bench 11 Appln.9.23&5.249.Mr. Rahul R. Karpe, learned counsel for the applicant inExhibit 23 / respondent no.5 in election petition has adopted thesubmissions of Mr. Deshmukh in support of his application filedunder Order 7 Rule 11 of the Code of Civil Procedure, 1908.10.Mrs. Priyandra G. Sontakke, learned counsel appearingfor the election petitioner submits that the election petitioner hasfiled his say to the application at Exhibit 11 of the returnedcandidate under Order 7 Rule 11 and it is contended in the reply atExhibit 13 that the petitioner filed the election petition incompliance with the provisions of Section 81, 82 and 117 of the R.P.Act and further in compliance of the provisions of Conduct ofElections Rules, 1961. It is contended that returned candidate wasnot qualified in terms of Section 5(a) of the R.P. Act. Whereas theelection petitioner belongs to the Scheduled Tribe category and hassecured second highest vote in the election.It is contended that the returned candidate does notbelongs to the category on which he got elected, as such, hernomination form is improperly accepted and , thus, the election ismaterially affected as set out in Section 100(1)(d)(i) of the R.P. Act. It is stated that ground No.XV to XIX and the annexeddocument at Exhibit K indicates that grounds as specified under Sub 12 Appln.9.23&5.24section 1(a) of Section 100 and Section 101 as required underSection 81 of the R.P. Act are made out. The petitioner specifically contends that the petitionerfiled the election petition taking the recourse to the groundsspecified in Section 100(1)(a) of the R.P. Act.It is further submitted that election petitioner in terms ofgrounds set out in the petitioner bearing No.XXXIII with respect todeclaring the petitioner as elected candidate being second highest insecuring the votes after the returned candidate, as such, thepetitioner has set out grounds under Section 100(1)(a) and Section101 of the R.P. Act. It is submitted that there are no allegations of corruptpractice made in the election petition and no separate affidavit isrequired in Form 25. It is also contended that the petitioner filed theseparate affidavit in support of the election petition commencedfrom page no.22 of the petition is in support of the election petitionand not the affidavit in form 25 as set out in proviso of Clause (c) ofSub Section (1) of Section 83 of the R.P. Act. The word Form 25mentioned at page no.22 is inadvertent act on the part of thepetitioner. 13 Appln.9.23&5.24It is also contended that the election petition is notbased on the allegations of corrupt practice and based only onSection 100(1)(a) and Section 101 of the R.P. Act. As per Section 83of the R.P. Act, the verification as executed by the petitioner issufficient for the pleadings of the election petition and there is noallegations of corrupt practice and, as such, there is no necessity toeither execute the separate affidavit in support of election petitonand or to file the affidavit in Form 25 of the Election Rules. The Form25 affidavit is not applicable to the facts of the case.It is also contended that the petitioner has filed theconcise statement of the material facts, on which, the petitionerrelies.The petitioner has contended that he has pleadedfactual and legal grounds in the election petition and the factual /legal grounds are mentioned in the verification of the electionpetition. It is stated that the petitioner has specifically pleaded thatthe petitioner solicited the documents from the scrutiny committeeand the same are duly supplied by the scrutiny committee videcovering letter. It is specifically averred in the reply that thepetitioner does not claim the disqualification of respondent no.1 onthe ground of corrupt practice and the disqualification prayed by the 14 Appln.9.23&5.24petitioner is on the ground of qualification of respondent no.1 as setout in Section 5(1)(a) and Section 33(2) of the R.P. Act read withArticle 173(c) of the Constitution of India.11.Mrs. Sontakke, learned counsel for the petitioner reliedupon the following Judgments:[1] Thangjam Arunkumar Vs. Yumkham Erabot Singhand others, 2023 DGLS (SC) 912,[2] A. Manju Vs. Prajwal Revanna @ Prajwal R. andothers, 2022 AIR (SC) 196[3] Harkirat Singh Vs. Amrinder Singh, 2006 AIR (SC)713[4] Sardar Harcharan Singh Brar Vs. Sukh DarshanSingh, 2005 AIR (SC) 22[5] G. M. Siddeshwar Vs. Prasanna Kumar, 2013 AIR(SC) 1549[6] Saritha S. Nair Vs. Hibi Eden, 2021 AIR (SC) 483[7] Vishwanatha Reddy Vs. Konappa RudrappaNadgouda, 1969 AIR (SC) 604[8] Kunti W/o. Shri Lalit Mahanand Vs. The ReturningOfficer, Nagar Panchayat, Bagbahara and others, CivilRevision No.168 of 2012 (High Court of Chhattisgarh atBilaspur)12.Having considered the rival submissions, the questionthat arises for consideration is, whether the petitioner has made outthe ground for deciding the Election Petition or the petition needs tobe dismissed at the outset for non compliance of mandatory 15 Appln.9.23&5.24provisions under The Representation of the People Act, 1951 and theConstitution of India.13.At the outset, it is necessary to note the relevantprovisions of The Representation of the People Act, 1951.SECTION 5(a)“Section 5 - Qualifications for membership of aLegislative Assembly.-A person shall not be qualified to be chosen to fill a seatin the Legislative Assembly of a State unless --(a) in the case of a seat reserved for the ScheduledCastes or for the Scheduled Tribes of that State, he is amember of any of those castes or of those tribes, as thecase may be, and is an elector for any Assemblyconstituency in that State;”SECTION 33(2)“33. Presentation of nomination paper and requirementsfor a valid nomination(1) ...(1A) ...(a) ...(b) ...(c) ...(2) In a constituency where any seat is reserved, acandidate shall not be deemed to be qualified to bechosen to fill that seat unless his nomination papercontains a declaration by him specifying the particularcaste or tribe of which he is a member and the area inrelation to which that caste or tribe is a Scheduled Casteor, as the case may be, a Scheduled Tribe of the State.” 16 Appln.9.23&5.24SECTION 36(2)(a)“Section 36 - Scrutiny of nominations.-(1) ...(2) The returning officer shall then examine thenomination papers and shall decide all objections whichmay be made to any nomination and may, either onsuch objection or on his own motion, after suchsummary inquiry, if any, as he thinks necessary, rejectany nomination on any of the following grounds :--(a) that on the date fixed for the scrutiny ofnominations the candidate either is not qualified or isdisqualified for being chosen to fill the seat under any ofthe following provisions that may be applicable,namely:--Articles 84, 102, 173 and 191,Part II of this Act and sections 4 and 14 of theGovernment of Union Territories Act, 1963 (20 of1963); or(b) that there has been a failure to comply with any ofthe provisions of section 33 or section 34; or(c) that the signature of the candidate or the proposeron the nomination paper is not genuine.”SECTION 100(1)(a) & (d) “Section 100 - Grounds for declaring election to be void(1) Subject to the provisions of sub-section (2) if theHigh court is of opinion- 17 Appln.9.23&5.24(a) that on the date of his election a returned candidatewas not qualified, or was disqualified, to be chosen tofill the seat under the Constitution or this Act or theGovernment of Union Territories Act, 1963; or(b) ...(c) ...(d) that the result of the election, in so far as it concernsa returned candidate, has been materially affected-(i) by the improper acceptance of any nomination, or(ii) ...(iii) ...(iv) by any non-compliance with the provisions of theConstitution or of this Act or of any rules or ordersmade under this Act,the High Court shall declare the election of the returnedcandidate to be void....”SECTION 101“Section 101 - Grounds for which a candidate otherthan the returned candidate may be declared to havebeen electedIf any person who has lodged a petition has, in additionto calling in question the election of the returnedcandidate, claimed a declaration that he himself or anyother candidate has been duly elected and the HighCourt is of opinion-(a) that in fact the petitioner or such other candidatereceived a majority of the valid votes; or 18 Appln.9.23&5.24(b) that but for the votes obtained by the returnedcandidate by corrupt practices the petitioner or suchother candidate would have obtained a majority of thevalid votes,the High Court shall, after declaring the election of thereturned candidate to be void declare the petitioner orsuch other candidate, as the case may be, to have beenduly elected.”14.The relevant provisions of The Constitution of India inthis case is Article 173(c)“Article 173 - Qualification for membership of the StateLegislatureA person shall not be qualified to be chosen to fill a seatin the Legislature of a State unless he(a) ...(b) ...(c) possesses such other qualifications as may beprescribed in that behalf by or under any law made byParliament.”15.The relevant provision of The Code of Civil Procedure,1908 is Order VI Rule 15:“15. Verification of pleadings(1)Save as otherwise provided by any law for thetime being in force, every pleading shall be verified atthe foot by the party or by one of the parties pleading orby some other person proved to the satisfaction of theCourt to be acquainted with the facts of the case. 19 Appln.9.23&5.24(2)The person verifying shall specify, by reference tothe numbered paragraphs of the pleading, what heverifies of his own knowledge and what he verifies uponinformation received and believed to be true.(3)The verification shall be signed by the personmaking it and shall state the date on which and theplace at which it was signed.(4)The person verifying the pleading shall alsofurnish an affidavit in support of his pleadings.”16.FORM 2B of The Conduct of Elections Rules, 1961 isreproduced as under:FORM 2B(See rule 4)NOMINATION PAPERElection to the Legislative Assembly of............................................................. (State)Recent stamp size(2cmX2.5cm)photograph inwhite/off whitebackground with fullface view to beattachedSTRIKE OFF PART I OR PART II BELOW WHICHEVER IS NOT APPLICABLEPART III...* I further declare that I am a member of the.............................................................**Caste/tribe which is a scheduled ***caste/tribe of the State of................................... inrelation to......................................... (area) in that State.... 20 Appln.9.23&5.2417.The nomination papers filed by the returned candidateis at page no.137 onwards of the Election Petition, wherein thereturned candidate at page 141 has given a declaration as under:"*मी आणखी असे प्रति(cid:12)ज्ञापन कर(cid:12)ो किक, मी टोकरे कोळी या**जमा(cid:12)ीचा उमेदवार असून (cid:12)ी जमा(cid:12) महाराष्ट्र राज्य (क्षेत्र) क्षेत्राच्यासंबंधा(cid:12)ील महाराष्ट्र राज्य राज्याची **अनुसूतिच(cid:12) जमा(cid:12) आहे."18.With regard to the submissions of the learned counselfor the applicant that the material facts are not pleaded and inabsence of material facts, the petition is not maintainable, the law onthe subject is discussed in the case of Anil Vasudev Salgaonkar Vs.Naresh Kushali Shigaonkar, (2009) 9 SCC 310, wherein it is heldthat failure to state even a single material fact will entail dismissal ofthe election petition. Para 61, which summarizes the legal position isreproduced below:“61.The legal position has been crystallised by a seriesof the judgments of this Court that all those facts whichare essential to clothe the election petitioner with acomplete cause of action are “material facts” whichmust be pleaded, and the failure to place even a singlematerial fact amounts to disobedience of the mandate ofSection 83(1)(a) of the Act.”19.In the case of Ram Sukh Vs. Dinesh Aggarwal, (2009)10 SCC 541 the Hon’ble Supreme Court defined the material factsare primary or basic facts which have to be pleaded by the petitioner 21 Appln.9.23&5.24for giving rise to cause of action, violation of which will result indismissal of the petition.20.Similarly, in the case of Virender Nath Gautam Vs.Satpal Singh and Ors., (2007) 3 SCC 617, paras 29 and 31 arerelevant and quoted below:“29.From the relevant provisions of the Actreproduced hereinabove, it is clear that an electionpetition must contain a concise statement of 'materialfacts' on which the petitioner relies. It should alsocontain 'full particulars' of any corrupt practice that thepetitioner alleges including a full statement of names ofthe parties alleged to have committed such corruptpractice and the date and place of commission of suchpractice. Such election petition shall be signed by thepetitioner and verified in the manner laid down in theCode of Civil Procedure, 1908 (hereinafter referred to as"the Code") for the verification of pleadings. It should beaccompanied by an affidavit in the prescribed form insupport of allegation of such practice and particularsthereof.31.The expression 'material facts' has neither beendefined in the Act nor in the Code. According to thedictionary meaning, 'material' means 'fundamental','vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive','essential', 'pivotal', indispensable', 'elementary' or'primary'. [Burton's Legal Thesaurus, (3rd edn.); p.349].The phrase 'material facts', therefore, may be said to bethose facts upon which a party relies for his claim ordefence. In other words, 'material facts' are facts uponwhich the plaintiff's cause of action or the defendant'sdefence depends. What particulars could be said to be'material facts' would depend upon the facts of eachcase and no rule of universal application can be laiddown. It is, however, absolutely essential that all basicand primary facts which must be proved at the trial by 22 Appln.9.23&5.24the party to establish the existence of a cause of actionor defence are material facts and must be stated in thepleading by the party.”21.Similarly, in the case of Laxmi Kant Bajpai Vs. HaziYaqoob and Ors., (2010) 4 SCC 81, the Hon’ble Supreme Courtrelying upon the earlier judgment had made observations that thematerial fact required to be stated are those facts which can beconsidered as materials supporting the allegations made in thepetition and would constitute the cause of action which the oppositeparty will have to meet.22.Considering the law discussed in above Judgments tothe fact of instant case, it is to be noted that in the Election Petition,at page 3, clause II, the petitioner has stated that the election ischallenged on the ground that the nomination of respondent no.1has been improperly accepted by the returning officer and theelection is void due to non compliance of the provisions of theConstitution of India and the R.P. Act. It is stated in the same parathat respondent no.1 does not belongs to the S.T. category.Therefore, respondent no.1 is not qualified to contest the electionsfrom 10-Chopda (S.T.) Assembly Constituency. It is stated in thepetition that 10-Chopda (S.T.) Assembly Constituency is reserved forthe S.T. category for the assembly elections held in the year 2009 23 Appln.9.23&5.24and 2014 and it is further continued for the Maharashtra LegislativeAssembly Elections of 2019 from 10-Chopda (S.T.) AssemblyConstituency. It is stated that the returned candidate respondent no.1belongs to Hindu Other Backward Category as seen from the oldestrecord of her father and the school record of respondent no.1 herself.However, respondent no.1 by suppressing material facts and byobtaining the caste certificate from Sub-Divisional Officer, Jalgaonwithout submitting any documents has filled nomination form fromthe 10-Chopda (S.T.) Assembly Constituency.It is stated that respondent no.1 has made falsestatement in Part-III of the nomination form stating that she belongsto Tokre Koli (S.T.). It is stated that the entire school record ofrespondent no.1, her father, her sister and other relatives indicatethat respondent no.1 / returned candidate belongs to Hindu (OBC)and, as such, respondent no.1 is not qualified to contest the assemblyelections on the seat earmarked for S.T. category.It is also stated that in para XV of the petition that theInformation Officer of the S.C. S.T. Verification Committee to supplythe necessary documents along with proposal for verification of tribeof respondent no.1 / returned candidate, which are annexed by the 24 Appln.9.23&5.24petitioner to the petition at Annexure “K”. The documents at page238 of the petition is a leaving certificate of the returned candidate,which indicates the year of admission to the school as 1976 and thereturned candidate belongs to हिंहदू इ. मा., at page 239 of MaharuKeshav Koli indicates caste as कोळी, at page 240 of Shobha MaharuBaviskar indicates caste as हिंहदू कोळी (इ. मा.), at page 241 of SunandaMaharu Koli indicates caste as हिंहदू मागासलेला, at page 242 of ManishaSahebrao Baviskar indicates caste as हिंहदू - टोकरे कोळी (शे. ट्रा.), at page243 Rekhabai Sahebrao Baviskar indicates caste as caste हिंहदू टोकरेकोळी (शे. ट्रा.).23.All these documents as above and other documents,which are marked with Annexure “K”, prima facie, gives rise to thetriable case of that the returned candidate do not belongs to S.T.category. The documents will have to be examined at the stage oftrial. Thus, all material facts required to decide this election arepleaded in the Election Petition.24.The reliance placed by the learned counsel for theapplicant / returned candidate on the case of Karim Uddin BarbhuiyaVs. Aminul Haque Laskar and Ors., AIR 2024 SC 2193, is of no 25 Appln.9.23&5.24assistance in the instant case, as Karim’s case relates to the corruptpractice and for the reasons of corrupt practice the results of theelections were materially affected. As far as the present case isconcerned, it only relates to the case of the returned candidate beingnot qualified to contest the election in terms of Section 5(a) of theR.P. Act read with Article 173(c) of the Constitution of India. 25.In the case of Karim Uddin Barbhuiya Vs. Aminul HaqueLaskar and Ors, AIR 2024 SC 2193, the Hon’ble Supreme Court held,at para 16, as under:“16. Bearing in mind the aforestated legal position, letus consider the averments and allegations made by theRespondent No. 1 in the Election Petition in which theelection of the Appellant is sought to be challengedbasically on two grounds: (1) that the Appellant hascommitted corrupt practice and (2) the result of theelection in so far as it concerned the Appellant, wasmaterially affected by the improper acceptance of hisnomination. In short, the Respondent No. 1 has invokedSection 100(1)(b) and Section 100(1)(d)(i) of the Act,for declaring the election of the Appellant as void.”26.Coming to the next submission of the learned counselfor the applicant that the election petition suffers from defects inverification of the pleadings and is not as per Order 6 Rule 15 of theCPC. The law on the subject is discussed as under. 26 Appln.9.23&5.24The defect in verification of election petition or affidavitaccompanying the election petition are curable defects and not fatalas has been held in the case of H.D. Revanna Vs. G. Puttaswamy andOrs., (1999) 2 SCC 217.27.The Hon’ble Supreme Court in the case of ThangjamArunkumar Vs. Yumkham Erabot Singh and Others, 2023 DGLS (SC)912, considering the law laid down in earlier case of G. M.Siddeshwar Vs. Prasanna Kumar, (2013) 4 SCC 776, wherein thethree Judge Bench in Siddeshwar (supra) observed as under:“12. …. 1. The principal question of law raised for ourconsideration is whether, to maintain an electionpetition, it is imperative for an election Petitioner to filean affidavit in terms of Order 6 Rule 15(4) of the Codeof Civil Procedure, 1908 in support of the avermentsmade in the election petition in addition to an affidavit(in a case where resort to corrupt practices have beenalleged against the returned candidate) as required bythe proviso to Section 83(1) of the Representation of thePeople Act, 1951. In our opinion, there is no suchmandate in the Representation of the People Act, 1951and a reading of P.A. Mohammed Riyas v. M.K.Raghavan, (2012) 5 SCC 511, which suggests to thecontrary, does not lay down correct law to this limitedextent. 2. Another question that has arisen is that if anaffidavit filed in support of the allegations of corruptpractices of a returned candidate is not in the statutoryForm 25 prescribed by the Conduct of Elections Rules,1961, whether the election petition is liable to be 27 Appln.9.23&5.24summarily dismissed. In our opinion, as long as there issubstantial compliance with the statutory form, there isno reason to summarily dismiss an election petition onthis ground. However, an opportunity must be given tothe election Petitioner to cure the defect. Further,merely because the affidavit may be defective, it cannotbe said that the petition filed is not an election petitionas understood by the Representation of the People Act,1951.22. A plain reading of Rule 15 suggests that averification of the plaint is necessary. In addition to theverification, the person verifying the plaint is "also"required to file an affidavit in support of the pleadings.Does this mean, as suggested by the learned Counsel forSiddeshwar that Prasanna Kumar was obliged to file twoaffidavits-one in support of the allegations of corruptpractices and the other in support of the pleadings?23. A reading of Section 83(1)(c) of the Act makes itclear that what is required of an election Petitioner isonly that the verification should be carried out in themanner prescribed in Code of Civil Procedure. ThatOrder 6 Rule 15 requires an affidavit "also" to be fileddoes not mean that the verification of a plaint isincomplete if an affidavit is not filed. The affidavit, inthis context, is a stand-alone document.25. It seems to us that a plain and simple reading ofSection 83(1)(c) of the Act clearly indicates that therequirement of an additional affidavit is not to be foundtherein. While the requirement of "also" filing anaffidavit in support of the pleadings filed under Code ofCivil Procedure may be mandatory in terms of Order 6Rule 15(4) Code of Civil Procedure, the affidavit is not apart of the verification of the pleadings-both are quitedifferent. While the Act does require a verification of thepleadings, the plain language of Section 83(1)(c) of theAct does not require an affidavit in support of thepleadings in an election petition. We are being asked toread a requirement that does not exist in Section 83(1)(c) of the Act. 28 Appln.9.23&5.2437. A perusal of the affidavit furnished by PrasannaKumar ex facie indicates that it was not in absolutecompliance with the format affidavit. However, weendorse the view of the High Court that on a perusal ofthe affidavit, undoubtedly there was substantialcompliance with the prescribed format. It is correct thatthe verification was also defective, but the defect iscurable and cannot be held fatal to the maintainabilityof the election petition.38. Recently, in Ponnala Lakshmaiah v. Kommuri PratapReddy, (2012) 7 SCC 788 the issue of a failure to file anaffidavit in accordance with the prescribed format cameup for consideration. This is what this Court had to say: “ 28. ... The format of the affidavit is at any rate not amatter of substance. What is important and at the heartof the requirement is whether the election Petitioner hasmade averments which are testified by him on oath, nomatter in a form other than the one that is stipulated inthe Rules. The absence of an affidavit or an affidavit in aform other than the one stipulated by the Rules does notby itself cause any prejudice to the successful candidateso long as the deficiency is cured by the electionPetitioner by filing a proper affidavit when directed todo so.”We have no reason to take a different view. Thecontention urged by Siddeshwar is rejected.”28.The instant Election Petition is supported by verificationat page 21, wherein it is stated on solemn affirmation that, what isstated in para Nos. I to III and V to XIV are true facts and alsoaccording to the true copies obtained by the Election Petitioner from 29 Appln.9.23&5.24the office of Returning Officer, Chopda, Tq. Choda, District Jalgaonand from the office of Tahsil, Chopda, Tq. Chopda, District Jalgaon.It is further stated in the verification that the contents ofpara Nos. IV, XV to XXIII are true facts based on true copies suppliedby the Scheduled Caste, Scheduled Tribe Certificate VerificationCommittee, Nandurbar.It is also stated in the verification that the contents ofpara Nos. XXIV to XXXIII are legal and factual submission / pleadingsand para Nos. XXXIV to XLI are technical and the same are true andcorrect according to my knowledge and belief. The contents of paraNo. XLII are humble prayers. The petition again is supported by an affidavit insupport of the Election Petition titled as ‘Form 25’, at page 22, whichalso has further verification clause at page 35.The petition is supported by a verification clause andalso by an independent affidavit at page no.22 and there is sufficientcompliance of the requirements of filing affidavit. The affidavitmentioned as “Form 25” in the title is merely superfluous and as anabundant precaution and in any event the verification affidavit atpage no.21 & 35 clearly supports the petition in terms of Order 6Rule 15 of the CPC, any defect thereto is also curable defect and the 30 Appln.9.23&5.24petition cannot be dismissed outright as far as the defect in theaffidavit is concerned.29.Now, I deal with the issue raised by Mr. Deshmukh thatonce the declaration as contemplated in Part-III of ‘Form 2B’ of Rule4 read with Sections 5(a) and 33(2) of the R.P. Act is made, there isno obligation to produce any document for the candidate tosubstantiate his claim as belonging to scheduled caste or scheduledtribe. The only obligation on the candidate contesting reserved seatis to make a declaration about his caste / tribe, which is notified asSC or ST in that State and nothing more is required in terms of Part-III of From 2B above. Once the declaration is made in terms of thePart-III of Form 2B the Returning Officer has no powers to enter intoan inquiry, whether a particular candidate contesting the reservedseat belongs to a particular caste or tribe as to reject his nomination.This submission of the learned counsel needs to be rejected for thefollowing reasons.Section 36(2)(a) of the R.P. Act obliges the ReturningOfficer to examine the nomination papers and to decide allobjections, which may be made to any nomination either on suchobjection or on his own motion and to verify, if, the candidate iseither qualified or is disqualified for being chosen to fill the seat 31 Appln.9.23&5.24under any of the provisions that may be applicable namely Articles84, 102, 173 and 191, Part-II of the R.P. Act and Section 4 and 14 ofthe Government of the Union Territories Act, 1963, or that there isfailure to comply with any of the provisions of Sections 33 or 34 orthat the signature of the candidate or the proposer in nominationpaper is not genuine. The Returning Officer has to conduct summaryinquiry to ascertain that the particular candidate is either qualified ordisqualified in terms of the provisions of the Act and the Constitutionof India.30.The requirement of qualification of the candidate for theState Legislature is prescribed under Article 173 (C) of theConstitution of India i.e. a person shall not be qualified to be chosento fill the seat in the legislature of the State unless he possess suchother qualification as may be prescribed in that behalf by or underany law made by parliament.31.Section 5(a) of the R.P. Act provides for qualification ofmembership of a state legislature assembly that, a person shall notbe qualified to be chosen to fill a seat in the Legislative Assembly of aState unless; in the case of a seat reserved for the Scheduled Castesor Schedules Tribes of that State, he is a member of any of those 32 Appln.9.23&5.24castes or of those tribes, as the case may be, and is an elector for anyAssembly constituency in that State.32.Section 33(2) of the R.P. Act, provides that presentationof the nomination paper and requirement for a valid nomination inconstituency where a seat is reserved, the candidate shall not bedeemed to be qualified to be chosen to fill that seat unless hisnomination paper contains a declaration by him specifying aparticular caste or tribe of which he is a member and the area inrelation to which he is a member and the area in relation to whichthat caste or tribe is a scheduled caste or, as the case may be, asscheduled tribe of the State.33.The requirement of Section 33(2) of the R.P. Act is thatthe candidate has to make a declaration in the nomination form thathe belongs to a particular scheduled caste or scheduled tribe asnotified in the State. The Returning Officer under Section 36(2)(a)of the R.P. Act conducts a summary inquiry verifying that the saiddeclaration is valid or invalid. The Returning Officer may call uponthe candidate to provide some basic document (including a castecertificate or validity certificate, wherever available), on the basis ofwhich the petitioner claims to be belongs to the scheduled caste or 33 Appln.9.23&5.24scheduled tribe. The Returning Officer may also take intoconsideration, any adverse document produced by the Objectors thatthe candidate does not belong to a particular scheduled caste orscheduled tribe as notified in the State. The inquiry is summary innature and may either accept or reject the nomination paper. Merelybecause no particular document is prescribed to ascertain the caste /tribe of the candidate contesting election to the scheduled caste /scheduled tribe seat, would not mean that no inquiry iscontemplated under Section 36(2) of the R.P. Act to ascertain thescheduled caste / scheduled tribe status of the candidate.34.I draw support from the Judgment of the AllahabadHigh Court, Bench at Lucknow, in the case of Ajay Kumar Vs. BhimPrasad Sonkar, Election Petition No.1 of 2012, order dated01.07.2016, at para 137, has observed as under“137. Since this Court is of the opinion that petitionerhas not been able to establish that he is 'Gond' and belongsto Scheduled Caste, he was not entitled to contest theelection in view of Section 5 of the R.P. Act. As such, decisionof Returning Officer on merits rejecting the petitioner'snomination was correct. Therefore, issue nos. 1 & 2 aredecided as under:"Petitioner's nomination was not improperly rejectedas petitioner has failed to establish that he belongs toScheduled Caste"” 34 Appln.9.23&5.2435.I also takes support from the Judgment of the Hon’bleSupreme Court in the case of Ganu Ram Vs. Rikhi Ram Kaundal andothers, MANU/SC/0158/1984, wherein the Hon’ble Supreme Courthas dealt with similar issue and has observed at para 4, as under: “4….The first ground urged was that the nominationpaper filed by the appellant was not in order inasmuchas it did not contain any declaration by the appellantspecifying the particular caste of which he is a memberand the area in relation to which the said caste has beendeclared to be a scheduled caste in the State. On thisbasis it was contended that the nomination paper of theappellant had been improperly accepted by theReturning Officer. ...”36.The Hon’ble Supreme Court at para 8 in the factsituation had observed as under:“8.It is manifest that the legislative purposeunderlying Sub-section (2) of Section 33 of the Act isthat when a nomination paper is filed in respect of areserved seat in any constituency there must be a clearspecification by the candidate of the particular caste ortribe to which he belongs and the area in relation towhich that caste or tribe is a scheduled caste orscheduled tribe of the State. This requirement is fullysatisfied in the present case because by producing thecertificate of the Sub-Divisional Magistrate as anannexure to his nomination paper the appellant hadclearly made it known that he was filing the nominationas a candidate belonging to the 'Lohar' caste, which isadmittedly a scheduled caste in the entirety of the areaof the State of Himachal Pradesh. It is also significantthat no objection whatever was raised against the 35 Appln.9.23&5.24nomination filed by the appellant at the time ofscrutiny….”37.Although, in the case of Ganu Ram Vs. Rikhi RamKaundal and others (supra), the candidate had not filed declarationin terms of Section 33(2) of the R.P. Act and had only filed castecertificate, the Hon’ble Supreme Court in the fact situation has heldthat even if the declaration as contemplated under Section 33(2) ofthe R.P. Act is not made the nomination filed can be validly acceptedon the basis of the caste certificate. Thus, the Returning Officer in agiven fact situation is entitled to look into the documents beyond thedeclaration under Section 33(2) of the R.P. Act to ascertain, whetherthe candidate belongs to scheduled caste or scheduled tribe category.38.Similarly, in the case of Satrucharla Vijaya Rama RajuVs. Nimmaka Jaya Raju & others, AIR 2006 SC 543, the Hon’bleSupreme Court in an appeal filed against the Judgment of the HighCourt in Election Petition upheld the Judgment of the High Court,whereby the High Court had declared that the returned candidatedid not belong to the Scheduled Tribe category after considering theevidence placed on record. 36 Appln.9.23&5.2439.The submission of the learned counsel for the applicantthat only the declaration under Section 33(2) of the R.P. Act has tobe seen and nothing else to be looked into at the time of verificationof nomination is not the correct position of law. The ReturningOfficer is entitled to look into all these relevant documents that areproduced at the stage of nomination, while conducting summaryinquiry, whether a particular candidate belongs to scheduled caste orscheduled tribe.40.This court in an Election Petition is also entitled to gointo the question, whether the returned candidate, who hascontested the election to the reserved seat belongs to scheduled casteor scheduled tribe as notified in the State and declare the electionvoid if the returned candidate is found not belonging to the categoryunder Section 100(1)(a) so also under Section 100(1)(d)(i)&(iv) ofthe R.P. Act. However, in an Election Petition, this court will entertainthe inquiry, whether the returned candidate, who has contested theelection to reserved seat belongs to scheduled caste or scheduledtribe as notified in the State only if some basic documents areproduced with the Election Petition, which may, prima facie, indicatethat the returned candidate does not belong to the scheduled casteor scheduled tribe category. 37 Appln.9.23&5.2441.In view of this, the contentions of the applicants fail.The applications bearing number Application in EP No.9 of 2023(Exhibit 11) filed by the returned candidate / respondent no.1 andApplication in EP No.5 of 2024 (Exhibit 23) filed by respondentno.5, are rejected.[ARUN R. PEDNEKER, J.]marathe