Judgment380 Election Petition1.2465 & Ors. v. Debi Ghosal & Ors.

Explanation.—For the purposes of this clause theterm “gratification” is not restricted to pecuniarygratifications or gratifications estimable in moneyand it includes all forms of entertainment and allforms of employment for reward but it does notinclude the payment of any expenses bona fideincurred at, or for the purpose of, any electionand duly entered in the account of electionexpenses referred to in section 78.(2) Undue influence, that is to say, any direct orindirect interference or attempt to interfere onthe part of the candidate or his agent, or of anyother person with the consent of the candidate orhis election agent, with the free exercise of anyelectoral right: Provided that—(a) without prejudice to the generality of theprovisions of this clause any such person as isreferred to therein who—.....21/- Judgment380 Election Petition1.2421(i)threatens any candidate or any elector, or anyperson in whom a candidate or an electorinterested, with injury of any kind includingsocial ostracism and ex-communication orexpulsion from any caste or community; or(ii)induces or attempts to induce a candidate oran elector to believe that he, or any person inwhom he is interested, will become or will berendered an object of divine displeasure orspiritual censure, shall be deemed to interferewith the free exercise of the electoral right ofsuch candidate or elector within the meaning ofthis clause; (b) a declaration of public policy, or a promise ofpublic action, or the mere exercise of a legal rightwithout intent to interfere with an electoral right, shall not be deemed to be interference within themeaning of this clause.

(3) The appeal by a candidate or his agent or byany other person with the consent of a candidates.....22/- Judgment380 Election Petition1.2422or his election agent to vote or refrain fromvoting for any person on the ground of hisreligion, race, caste, community or language orthe use of, or appeal to religious symbols or theuse of, or appeal to, national symbols, such as thenational flag or the national emblem, for thefurtherance of the prospects of the election ofthat candidate or for prejudicially affecting theelection of any candidate: Provided that no symbol allotted under this Act toa candidate shall be deemed to be a religioussymbol or a national symbol for the purposes ofthis clause. (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between differentclasses of the citizens of India on grounds ofreligion, race, caste, community, or language, bya candidate or his agent or any other person withthe consent of a candidate or his election agentfor the furtherance of the prospects of the.....23/- Judgment380 Election Petition1.2423election of that candidate or for prejudiciallyaffecting the election of any candidate.

(3B) The propagation of the practice or thecommission of sati or its glorification by acandidate or his agent or any other person withthe consent of the candidate or his election agentfor the furtherance of the prospects of theelection of that candidate or for prejudiciallyaffecting the election of any candidate. Explanation.—For the purposes of this clause,“sati” and “glorification” in relation to sati shallhave the meanings respectively assigned to themin the Commission of Sati (Prevention) Act, 1987.(4) The publication by a candidate or his agent orby any other person with the consent of acandidate or his election agent, of any statementof fact which is false, and which he eitherbelieves to be false or does not believe to be true, in relation to the personal character or conduct ofany candidate or in relation to the candidature,.....24/- Judgment380 Election Petition1.2424or withdrawal, of any candidate, being astatement reasonably calculated to prejudice theprospects of that candidate’s election.

(5) The hiring or procuring, whether on paymentor otherwise, of any vehicle or vessel by acandidate or his agent or by any other personwith the consent of a candidate or his electionagent or the use of such vehicle or vessel for thefree conveyance of any elector (other than thecandidate himself the members of his family orhis agent) to or from any polling station providedunder section 25 or a place fixed under sub-section (1) of section 29 for the poll: Provided that the hiring of a vehicle or vessel byan elector or by several electors at their jointcosts for the purpose of conveying him or them toand from any such polling station or place fixedfor the poll shall not be deemed to be a corruptpractice under this clause if the vehicle or vesselso hired is a vehicle or vessel not propelled bymechanical power: .....25/- Judgment380 Election Petition1.2425Provided further that the use of any publictransport vehicle or vessel or any tramcar orrailway carriage by any elector at his own cost forthe purpose of going to or coming from any suchpolling station or place fixed for the poll shall notbe deemed to be a corrupt practice under thisclause.

Explanation.—In this clause, the expression“vehicle” means any vehicle used or capable ofbeing used for the purpose of road transport, whether propelled by mechanical power orotherwise and whether used for drawing othervehicles or otherwise. (6) The incurring or authorizing of expenditurein contravention of section 77.(7) The obtaining or procuring or abetting orattempting to obtain or procure by a candidate orhis agent or, by any other person with the consentof a candidate or his election agent, anyassistance (other than the giving of vote) for the.....26/- Judgment380 Election Petition1.2426furtherance of the prospects of that candidate’selection, from any person in the service of the Government and belonging to any of thefollowing classes, namely:-(a) gazetted officers; (b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenueofficers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty isto collect land revenue and who are remuneratedby a share of, or commission on, the amount ofland revenue collected by them but who do notdischarge any police functions; and.....27/- Judgment380 Election Petition1.2427(g) such other class of persons in the service ofthe Government as may be prescribed: (h) class of persons in the service of a localauthority, university, government company orinsitution or concern or undertaking appointedor deputed by the Election Commission inconnection with the conduct of elections]Provided that where any person, in the service ofthe Government and belonging to any of theclasses aforesaid, in the discharge or purporteddischarge of his official duty, makes anyarrangements or provides any facilities or doesany other act or thing, for, to, or in relation to, any candidate or his agent or any other personacting with the consent of the candidate or hiselection agent (whether by reason of the officeheld by the candidate or for any other reason),such arrangements, facilities or act or thing shallnot be deemed to be assistance for thefurtherance of the prospects of that candidate’selection]......28/- Judgment380 Election Petition1.2428[(8) Booth capturing by a candidate or his agentor other person.]Explanation.—(1)In this section the expression“agent” includes an election agent, a pollingagent and any person who is held to have actedas an agent in connection with the election withthe consent of the candidate.

(2) For the purposes of clause (7), a person shallbe deemed to assist in the furtherance of theprospects of a candidate’s election if he acts as anelection agent of that candidate. (3)For the purposes of clause (7),notwithstanding anything contained in any otherlaw, the publication in the Official Gazette of theappointment, resignation, termination of service, dismissal or removal from service of a person inthe service of the Central Government (includinga person serving in connection with theadministration of a Union territory) or of a StateGovernment shall be conclusive proof—.....29/- Judgment380 Election Petition1.2429(i) of such appointment, resignation, terminationof service, dismissal or removal from service, asthe case may be, and(ii)where the date of taking effect of suchappointment, resignation, termination of service, dismissal or removal from service, as the casemay be, is stated in such publication, also of thefact that such person was appointed with effectfrom the said date, or in the case of resignation, termination of service, dismissal or removal fromservice such person ceased to be in such servicewith effect from the said date]. (4) For the purposes of clause (8), “boothcapturing” shall have the same meaning as insection 135A.]”

It is only whenthe petitioner does not seek a declaration of his ownelection, only returning candidate can be impleaded tothe election petition.29. Here, in the present case, the petitioner hasclearly sought declaration of his own election and, therefore, it was obligatory on his part to join all thecontesting candidates as respondents to his petition. There is no serious dispute as far as the settled law inview of the provisions of Section 82 of the RP Act isconcerned which is mandatory in nature......33/- Judgment380 Election Petition1.243330. The concept of joining a proper party to anelection petition is defined by the provisions of the Act. The concept of joinder of proper party to a suit orproceeding underlying Order 1 of the CPC cannot beimported to trial of the election petition in view of theprovisions of Sections 82 and 87 of the RP Act. The Actitself is self contained code which does not contemplatejoinder of person or authority to an election petition onthe ground of proper party.31.

In K.Venkateswara Rao and anr vs. BekkamNarasimha Reddi and ors, reported in 1969 AIR 872this court, while discussing the application under Order1 Rule 10 of the CPC to an election petition, held thatthere could not any addition of parties in the case ofelection petition except under the provisions of Section86(4) of the RP Act......34/- Judgment380 Election Petition1.243432. In Jyoti Basu and ors vs. Debi Ghosal and orssupra, the Hon’ble Apex Court held that the concept of`proper parties' is and must remain alien to an electiondispute under the RP Act. Only those may be joined asrespondents to an election petition who are mentionedin section 82 and section 86(4) and no others. 33. The purpose behind impleadment of othercontesting candidates to election petition, wheredeclaration is sought by the Petitioner of his ownelection, is on account of their right to seek adeclaration of their own election instead of thepetitioner.

Under provisions of Section 97 of the RPAct, in a petition involving a declaration of petitioner asbeing elected, the returned candidate as well as theother contesting candidates are entitled to giveevidence to prove that they ought to be declared asreturned candidates. .....35/- Judgment380 Election Petition1.243534. Thus, the scheme of the Act is such that ifpetitioner merely challenges election of the returnedcandidate (without seeking his own election), it is notnecessary to join other contesting candidates to theelection petition, where he claims declaration of hisown election, and in the event of the Court declaringelection of the returned candidate being void, the othercontesting candidates are required to be given anopportunity to seek their own election instead ofelection of the petitioner and, therefore, all contestingcandidates are necessary parties for such electionpetition.35.

In the case of Mohan Raj vs. Surendra KumarTaparia supra relied by learned Senior Counsel forrespondent No.3, it is held by the Hon’ble Apex Courtthat it is argued that the Civil Procedure Code appliesand Order VI Rule 17 and Order I Rule 10 enable the.....36/- Judgment380 Election Petition1.2436High Court respectively to order amendment of apetition and to strike out parties. It is submitted, therefore, that both these powers could be exercised inthis case by ordering deletion of reference to Periwal. This argument cannot be accepted. No doubt the powerof amendment is preserved to the court and Order IRule 10 enables the court to strike out parties but thecourt cannot use Order VI Rule 17 or Order I Rule 10 toavoid the consequences of non-joinder for which aspecial provision is to be found in the Act.36. The court can order an amendment and evenstrike out a party who is not necessary. But when the Act makes a person a necessary party and provides thatthe petition shall be dismissed if such a party is notjoined, the power of amendment or to strike out partiescannot be used at all.

The Civil Procedure Code appliessubject to the provisions of the RP Act and any rules.....37/- Judgment380 Election Petition1.2437made thereunder (see s. 87). When the Act enjoins thepenalty of dismissal of the petition for non-joinder of aparty the provisions of the Civil Procedure' Code cannotbe used as curative means to save the petition. It isfurther observed that every election petition can besaved by amendment in this way but that is not policyof the law.37. In K.Kamaraja Nadar vs. Kunju Thevar and orssupra, the Hon’ble Apex Court observed that asregards the amendment of a petition by deleting theaverments and the prayer regarding the declarationthat either the petitioner or any other candidate hasbeen duly elected, so as to cure the defect of non-joinder of the necessary parties as respondents, we mayonly refer to our judgment about to be delivered in CivilAppeal No. 76 of 1958, where the question is discussedat considerable length.

Suffice it to say here that the.....38/- Judgment380 Election Petition1.2438election tribunal has no power to grant such anamendment, be it by way of withdrawal orabandonment of a part of the claim or otherwise, onceElection Petition has been presented to the ElectionCommission claiming such further declaration.38. In the case of Surendra Budhaji Borkar vs. Narayan Tatu Rane supra this court has held in paraNo.19 by referring the Section 82 of the RP Act that thethe effect of provisions of Section 82 of the Act is veryclear that the election Petition has to be arrayed of allthe contesting candidates specially in case the petitionermakes a claim to be declared as a winning candidate. The special provisions in the election statutes withregard to this are mandatory and cannot be waived. Itshould prevail......39/- Judgment380 Election Petition1.243939. In the case of Kallappa Laxman Malabade vs. Prakash Kallappa Awade supra, this court held that theprovisions of the CPC cannot be resorted to in order tosave a petition which otherwise is liable to be dismissedfor non-joinder of the parties, which Section 82 of the Act says must be joined.

40. In the case of Vijay Baburao Kamble vs. Madhukar Sarpotdar and ors supra, this court inparagraph No.59 observed that it is also of important tonote how the Apex Court has viewed such lethal defectof non-joinder. In Mohan Raj's case (supra) it is noticedit was urged that by recourse to the provisions ofamendment of pleadings contained in Code of CivilProcedure (Order 1. Rule 10 and Order 6, Rule 17) inthe interest of justice, the said defect be permitted to becured. The Apex Court rejected it, observing “when the Act enjoins the penalty of dismissal of the petition for.....40/- Judgment380 Election Petition1.2440non-joinder of a party the provisions of the CivilProcedure Code cannot be used as curative means tosave the petition.41. Thus, the settled law is that there should be acompliance in view of Section 82 of the RP Act. It isimpermissible for this court to allow the petitioner toamend the election petition by impleading the othercontesting candidates for the purpose of avoidingconsequences of dismissal of the election petition under Section 86(1) of the Act.

The statutory scheme under Sections 81 and 82 of the Act is such that an electionpetition can be filed and presented in view of Section82 of the Act within a period of 45 days. When thepetitioner seeks declaration of his own election, theaffected parties are not just the returned candidates butalso the contesting candidates. Every contestingcandidate has right under Section 97 of the Act to file.....41/- Judgment380 Election Petition1.2441recrimination petition for seeking a declaration that hehimself be declared as elected in stead of petitioner. Inthat view of the matter, the election petition adding allthe contesting candidates must also be filed within aperiod of 45 days of the election of the returnedcandidates.42. Thus, the petition filed before this court is notcomplying with Section 82 of the RP Act. Even, considering the application of the petitioner as anapplication for impleadment of contesting candidates, the same is filed beyond the period of 45 days from thedate of election of returned candidate respondent No.3- Nitin Jairam Gadkari.

Moreover, the said applicationnowhere states the names of the other contestingcandidates. It only states that he be permitted to addthe other parties as necessary parties. The petitionerhas not complied with Section 82 read with Section 97.....42/- Judgment380 Election Petition1.2442of the RP Act by adding the other contesting candidateswithin 45 days to the present election petition. Thoughthe petitioner has referred sub-section (4) of Section 86of the RP Act, which states that any candidate notalready a respondent shall, upon application made byhim to the High Court within fourteen days from thedate of commencement of the trial and subject to anyorder as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation to sub-section (4) of Section 86 of the RPAct, states that for the purposes of this sub-section andof section 97, the trial of a petition shall be deemed tocommence on the date fixed for the respondents toappear before the High Court and answer the claim orclaims made in the petition.43.

Sub-section (4) of Section 86 of the RP Act dealswith situation when any candidate not already a.....43/- Judgment380 Election Petition1.2443respondent shall, upon application made by him to the High Court within fourteen days from the date ofcommencement of the trial and subject to any order asto security for costs which may be made by the HighCourt, be entitled to be joined as a respondent. Thesaid provision can be used by the candidate who is notadded as a respondent and wants to contest thepetition. The petitioner cannot use this provision. Thepetitioner has to implead all the contesting candidateswithin 45 days and subsequent amendment is notpermissible. Order VI Rule 17 of the CPC permitsamendment of an election petition, but the same issubject to the provisions of the Act. 44. Section 81 of the RP Act prescribes a period of 45days from the date of the election for presentingelection petition calling in question the election ofreturned candidate.

After the expiry of that period, no.....44/- Judgment380 Election Petition1.2444election petition is maintainable and this court has nojurisdiction to extend the period of limitation. An orderof amendment for adding the contesting candidates isbeyond the ambit of Section 87 of the Act which is notpermissible.45. Even, if Civil Application No.163/2024 filed bythe petitioner is considered as an application forimpleadment of other contesting candidates to theelection petition, the application does not disclosenumber of the candidates and their names and onlyprays for adding the other contesting candidates asrespondents. In fact, it is not permissible. Thus, thereis non compliance of mandatory provisions of Section82 of the RP Act and, therefore, this court is left with nooption but to dismiss the election petition as per sub-section (1) of Section 86 of the RP Act......45/- Judgment380 Election Petition1.244546.

The second ground raised by respondent No.3 isthat the petition does not disclose any cause of action. The grounds raised in the petition are corrupt practicesand violation of “Model Code of Conduct” and “undueinfluence”. The pleading in the petition makes out thegrievance of the petitioner that on the day of theelection on many polling booths the Code of Conductwas being violated by the main ruling party. The voterswere given the chits having photographs of the BJPCandidates along with the symbol of BJP. There wereseparate machines carried by several BJP workers andthe said machines were having special software throughwhich if the voters names are seen, the total detailswere given to the voters in a printed form along withthe photographs of the BJP Candidates and Symbol. The link was circulated to the mobile phones of the BJPworkers. The said software was created by the BJP. The.....46/- Judgment380 Election Petition1.2446chits circulated to the voters were having photographsof respondent No.3 - Nitin Jairam Gadkari and symbolof BJP. Thus, on many polling booths, the Code of Conduct was violated.47.

Section 83(1)(a) of the RP Act, states that anelection petition shall contain a concise statement of thematerial facts on which the petitioner relies. Order VIRule (2) of the CPC , deals with pleading to statematerial facts and not evidence. It states that everypleading shall contain, and contain only, a statement ina concise form of the material facts on which the partypleading relies for his claim or defence, as the case maybe, but not the evidence by which they are to beproved.48. A bare perusal of the above two provisions wouldshow that the first part of Order VI Rule 2 of the CPC is.....47/- Judgment380 Election Petition1.2447similar to Sub Section (1)(a) of Section 83 of the RPAct. It is imperative for an election petition to contain aconcise statement of the material facts on which theelection petitioner relies. What are material facts?49. All basic and primary facts which must be provedat the trial by a party to establish the existence of acause of action or defence are material facts.

The bareallegations are never treated as a material facts. Thematerial facts are such facts which afford a basis for theallegations made in the election petition. The phrase“material facts” has neither been defined in the RP Actnor in the CPC and, therefore, it has been understoodby the courts in general terms to mean the entirebundle of facts which would constitute a completecause of action. The ‘material facts’ are facts uponwhich the plaintiff’s cause of action or defendant’sdefence depends. Broadly, speaking, all primary or.....48/- Judgment380 Election Petition1.2448basic facts which are necessary either to prove thecause of action by the plaintiff or defence by thedefendant are “material facts”.50. According to the dictionary meaning, "material"means "fundamental", "vital", "basic", "cardinal","central", "crucial", "decisive", "essential". Whatparticulars could be said to be "material facts" woulddepend upon the facts of each case.

The variouspronouncements of the Hon’ble Apex Court as well asthis court explain what is “material facts”.51. In the case of Sudarsha Avasthi vs. Shiv Pal Singhsupra, relied by learned Senior Counsel for respondentNo.3, it is observed that as per Section 83 of RP Act, itis duty of the person who files election petition andlevels allegations of corrupt practices to disclose the“material facts” on which he relies and that he should.....49/- Judgment380 Election Petition1.2449set forth the full particulars of corrupt practices that thepetitioner alleges, including the full statement as far aspossible disclosing the names of the parties alleged tohave committed such corrupt practice and the date andthe place of commission of each such practice and thesame shall be filed by the petitioner and verified in themanner as laid down in the CPC. Apart from this, hehas to file an affidavit in prescribed form in support ofthe allegation of such corrupt practice and he shoulddisclose the particulars thereof.

If he wants to rely onany document then it should be annexed to the petitionsigned by the petitioner and verified in the samemanner as the petition. The Hon’ble Apex Court further observed that Section 123 of the Act deals with the corrupt practice. What shall be the corrupt practice have beenenumerated in Section 123 of the Act, like; bribery.....50/- Judgment380 Election Petition1.2450which has been defined that any gift, offer or promiseby a candidate or his agent or by any other person withthe consent of a candidate or his election agent of anygratification, to any person whomsoever, with theobject, directly or indirectly of including a person tostand or not to stand as, or to withdraw or not towithdraw from being a candidate at an election or anelector to vote or refrain from voting at an election, oras a reward to a person for having so stood or notstood, or for having withdrawn or not havingwithdrawn his candidature; or an elector for havingvoted or refrained from voting.

Therefore, the detailedparticulars are required to be given that how a person isbeing bribed by various modes. All these particularshave to be given in the manner provided in Section 123of the Act. .....51/- Judgment380 Election Petition1.245152. In the case of Anil Vasudev Salgaonkar vs. NareshKushali Shigaonkar, reported in (2009)9 SCC 310, the Hon’ble Apex Court held that it is settled legal positionthat all ‘material facts’ must be pleaded by the party insupport of the case set up by him within a period oflimitation. Since the object and purpose is to enablethe opposite party to know the case he has to meetwith, in absence of pleading, a party cannot be allowedto lead evidence. Whether in an election petition, aparticular fact is material or not and as such is requiredto be pleaded is depended on the nature of chargeslevelled and the circumstances of the case. All the factswhich are essential to clothe the petition with completecause of action must be pleaded and failure to pleadeven a single material fact would amount todisobedience of the mandate of Section 83(1)(a).

Theelection petition must contain a concise statement of.....52/- Judgment380 Election Petition1.2452‘material facts’ on which the petitioner relies. In thecontext of charge of corrupt practice, ‘material facts’would mean all basic facts constituting ingredients ofthe particular corrupt practices alleged, which thepetitioner (the respondent herein) is bound tosubstantiate before he can succeed on that charge. It isalso well settled that if ‘material facts’ are missing, theycannot be supplied after expiry of period of limitationfor filing the election petition and the pleadings becomedeficient. By referring the catena of decisions in the abovesaid judgment, the Hon’ble Apex Court held that theposition is well settled an election petition can besummarily dismissed if it does not furnish the cause ofaction in exercise of the power under CPC. Appropriateorders in exercise of powers under the Code can bepassed if the mandatory requirements enjoined by.....53/- Judgment380 Election Petition1.2453Section 83 of the Act to incorporate the material facts inthe election petition are not complied with.

53. In Jitu Patnaik vs. Sanatan Mohakud and ors, reported in (2012)4 SCC 194, by referring earlierjudgments, the Hon’ble Apex Court distinguishedbetween ‘material facts’ and ‘material particulars’ andobserved that, “a distinction between ‘material facts’and ‘material particulars’ however must not beoverlooked. ‘Material facts’ primarily are basic factswhich must be pleaded by the plaintiff or by thedefendant in support of the case set up by him either toprove his cause of action or defence. ‘Particulars’, onthe other hand are details in support of ‘material facts’pleaded by the parties. They amplify the refine andembellish ‘material facts’ by giving distinctive touch tothe basic contours of a picture already drawn so as tomake it full, more clear and more informative......54/- Judgment380 Election Petition1.2454‘Particulars’ thus ensures conduct of fair trial and wouldnot take the opposite party by surprise.54.

Recently, in Kanimozhi Karunanidhi vs.A.Santhana Kumar and ors, reported in 2023 SCCOnLine SC 573 by mentioning the various provisions, the Hon’ble Apex Court held that, “an election petitionmust contain a concise statement of “material facts” onwhich the petitioner relies, is that such compliance of Section 83(1)(a) read with Order VII Rule 11 CPC mayentail dismissal of the election petition right at thethreshold.” ‘Material facts’ are facts which ifestablished would give the petitioner the relief askedfor. The test required to be answered is whether thecourt could have given a direct verdict in favour of theelection petitioner in case the returned candidate hadnot appeared to oppose the election petition on thebasis of the facts pleaded in the petition. They must be.....55/- Judgment380 Election Petition1.2455such facts as would afford a basis for the allegationsmade in the petition and would constitute the cause ofaction as understood in the CPC. ‘Material facts’ wouldinclude positive statements of facts as also positivestatement of the negative fact.55.

This court also in the case of Dr.RameshkumarBapuraoji Gajbe vs. Election Commission of India, NewDelhi and ors, reported in 2020(5) Mh.L.J. 328 heldthat every fact which shall have to be proved toformulate the complete cause of action is “materialfact”. In essence, the ‘material facts’ are the entirebundle of facts which would constitute a cause of actionand which facts would have to be established by thepetitioner to be entitled to the relief claimed. It is tritelaw that an election petition which is a bereft of‘material facts’ would entail dismissal at the thresholdon the premise that omission of single “material fact”.....56/- Judgment380 Election Petition1.2456would lead to incomplete cause of action and that suchpetition is not an election petition at all.56. In Ram Sukh vs. Dinesh Aggarwal, reported in(2009)10 SCC 541, the Hon’ble Apex Court observedthat the requirement in an election petition as to thestatement of material facts and the consequences oflack of such disclosure with reference to Sections 81,83, and 86 of the Act came up for consideration beforea three-Judge Bench of this Court in SamantN.Balkrishna and anr vs.

George Fernandez and ors, reported in 1969 AIR 1201. Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter alia, laiddown that: (I) Section 83 of the Act is mandatory andrequires first a concise statement of material facts andthen the fullest possible particulars; (ii) omission ofeven a single material fact leads to an incomplete causeof action and statement of claim becomes bad; (iii) the.....57/- Judgment380 Election Petition1.2457function of particulars is to present in full a picture ofthe cause of action and to make the opposite partyunderstand the case he will have to meet; (iv) materialfacts and particulars are distinct matters - material factswill mention statements of fact and particulars will setout the names of persons with date, time and place and(v) in stating the material facts it will not do merely toquote the words of the Section because then theefficacy of the material facts will be lost.57.

Thus, by these catena of decisions, it is reiteratedthat it was necessary for the election petitioner to averspecifically in what manner the result of the electioninsofar as it concerned the returned candidate isaffected. The pleading is vague and does not spell outas to how the election results were materially affectedbecause of these two factors. These facts fall short ofbeing "material facts" as contemplated in Section 83(1).....58/- Judgment380 Election Petition1.2458(a) of the Act to constitute a complete cause of action inrelation to allegation under Section 100(1)(d)(iv) ofthe Act. 58. Thus, ‘material facts’ as to corrupt practices bywhom, at which place and how the election materiallyaffected are basic requirements. In order to constitutecorrupt practice under Section 123(5) of the RP Act, hiring or procuring of machines which were used togenerate the slips by candidate or his agent or anyother person with his consent is the first essentialingredients which is absent in the present case.

Theentire pleadings nowhere disclose as to who hasprocured the said machines, who were using the saidmachines and whether the said machines were usedwith the consent of the returned candidate or not andhow it is used to influence the voters which requires tobe pleaded to make out a cause or corrupt practices......59/- Judgment380 Election Petition1.245959. The petitioner has also claimed that the returnedcandidate by way of undue influence influenced thevoters and, therefore, the election of the returnedcandidate deserves to be quashed.60. It is necessary to see what constitutes the “undueinfluence”. 61. It is an essential ingredient of the corruptpractice under Sub section (2) of Section 123 of the RPAct which shows that there should be any directinterference or attempt to interfere on the part of thecandidate or his agent or of any person with theconsent of the candidate or his agent with the freeexercise of any electoral right.62.

In the case of V.T.Khanzode vs. RBI, reported inMANU/SC/0201 1982; D.K.Trivedi and Sons vs. Stateof Gujarat, reported in MANU/SC/0636/1986, State of.....60/- Judgment380 Election Petition1.2460J & K vs. Lakhwinder Kumar, reported in (2013)6 SCC333, BSNL vs. Telecom Regulatory Authority of India, reported in MANU/SC/1264/2013 the followingprinciples are culled out as to the “undue influence”:“(i) The words "undue influence" are not to beunderstood or conferred a meaning in thecontext of English statute. (ii) The Indian election law pays regard to theuse of such influence having the tendency tobring about the result that has contemplated inthe clause. (iii) If an act which is calculated to interfere withthe free exercise of electoral right, is the true andeffective test whether or not a candidate is guiltyof undue influence. (iv) The words "direct or indirect" used in theprovision have their significance and they are tobe applied bearing in mind the factual context. .....61/- Judgment380 Election Petition1.2461(v) Canvassing by a Minister or an issue of awhip in the form of a request is permissibleunless there is compulsion on the electorate tovote in the manner indicated.

(vi) The structure of the provisions contained in Section 171-C of IPC are to be kept in view whileappreciating the expression of 'undue influence'used in Section 123(2) of the 1951 Act. (vii) The two provisos added to Section 123(2)do not take away the effect of the principal ormain provision. (viii) Freedom in the exercise of judgment whichengulfs a voter's right, a free choice, in selectingthe candidate whom he believes to be best fittedto represent the constituency, has to be given dueweightage. (ix) There should never be tyranny over themind which would put fetters and scuttle the freeexercise of an electorate. .....62/- Judgment380 Election Petition1.2462(x) The concept of undue influence applies atboth the stages, namely, pre- voting and at thetime of casting of vote. (xi) "Undue influence" is not to be equated with"proper influence" and, therefore, legitimatecanvassing is permissible in a democratic set up.

(xii) Free exercise of electoral right has a nexuswith direct or indirect interference or attempt tointerfere.” 63. The Hon’ble Apex Court in Bachan Singh vs. Prithvi Singh and ors, reported in (1975)1 SCC 368dealt with this issue and observed that, doubtless thedefinition of "undue influence" in sub-section (2) of Section 123 is couched in very wide terms, and on firstflush seems to cover every conceivable act whichdirectly or indirectly interferes or attempts to interferewith the free exercise of electoral right. In one senseeven election propaganda carried on vigorously,.....63/- Judgment380 Election Petition1.2463blaringly and systematically through charismal leadersor through various media in favour of a candidate byrecounting the glories and achievements of thatcandidate or his political party in administrative orpolitical field, does meddle with and mould theindependent volition of electors, having poor reasonand little education, in the exercise of their franchise.

That such a wide construction would not be inconsonance with the intendment of the legislature isdiscernible from the proviso to this clause. The provisoillustrates that ordinarily interference with the freeexercise of electoral right involves either violence orthreat of injury of any kind to any candidate or anelector or inducement or attempt to induce a candidateor elector to believe that he will become an object ofdivine displeasure or spiritual censure. The prefix"undue" indicates that there must be some abuse of.....64/- Judgment380 Election Petition1.2464influence. "Undue influence" is used in contra-distinction to "proper influence". Construed in the lightof the proviso, clause (2) of Section 123 does not bar orpenalize legitimate canvassing or appeals to reason andjudgment of the voters or other lawful means ofpersuading voters to vote or not to vote for a candidate. Indeed, such proper and peaceful persuasion is themotive force of our democratic process.” 64.

In view of the above observations and theprinciples laid down by the Hon’ble Apex Court, fromthe pleadings of the petitioner nowhere it reflects thatthere was any direct or indirect interference or attemptto interfere on the part of the candidate.65. Thus, seeing from any angle, it become clear thatin absence of pleadings as to the “material facts” to theextent of that the election of respondent No.3 - Nitin.....65/- Judgment380 Election Petition1.2465Jairam Gadkari a returned candidate was materiallyaffected, it would have to be held that the electionpetition is based on an incomplete cause of action. 66. Thus, in view of the law as laid down in the caseof Ram Sukh vs. Dinesh Aggarwal supra and in view ofthe failure on the part of the petitioner to aver the“material facts” and to aver the contention as toelection of returned candidate was materially affectedinsofar as it is concerned, the election petition is liableto be summarily dismissed without trial.

No usefulpurpose would be served by permitting the electionpetitioner to proceed for trial in absence of anypleadings in the election petition that the election of thereturned candidate was required to be declared voidunder Section 100(1)(d)(iv) of the Act. In absence ofsuch basic averments, it would also not be permissiblefor the election petitioner to lead any evidence in that.....66/- Judgment380 Election Petition1.2466regard. Therefore, the election petition is liable to bedismissed under the provisions of Order VII Rule 11(a)of the CPC as the complete cause of action is absent fordeclaring the election of the returned candidate to bevoid under Section 100(1)(d)(iv) of the Act. Accordingly, under Section 98(a) of the said Act, thepresent election petition stands dismissed. 67. In terms of Section 119 of the said Act, thereturned candidate is entitled to cost incurred by him incontesting the election petition.

The costs accordinglybe paid to the returned candidate by adopting thecourse prescribed by Section 121 of the said Act. 68. Civil Application No.141/2025 filed byrespondent No.3 - Nitin Jairam Gadkari under Order VIIRule 11 of the CPC with Section 86 of the RP Act forrejection of the election petition is allowed......67/- Judgment380 Election Petition1.2467 The Election Petition stands dismissed anddisposed of.69. Civil Applications, if any, are disposed of. (URMILA JOSHI-PHALKE, J.)!! BrWankhede !!...../-