Patna High Court
Mahachandra Prasad Singh vs Prof. Dr. Birendra Narayan Yadav on 9 May, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
ELECTION PETITION No.1 of 2023
======================================================
Mahachandra Prasad Singh son of Late Rangi Singh, Resident of Mohalla-
Rasoolpur, Jilani Chakkar Road, P.O. Head Post Office, Muzaffarpur, P.S.
Kazi Mohammadpur, District-Muzaffarpur.
... ... Petitioner/s
Versus
Prof. Dr. Birendra Narayan Yadav son of Lakshmi Narayan, Resident of
Mohalla-Mahmood Chowk Dahiyawan Chapra, P.O. Head Post Office,
Chapra, P.S. Chapra Town, District-Saran at Chapra.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. S.B.K. Manglam, Advocate
Mr. Awnish Kumar, Advocate
Mr. Kumar Gaurav, Advocate
Mr. Vikash Kumar Singh, Advocate
For the Respondent/s : Mr. P.K. Verma, Sr. Advocate
Mr. Yashraj Bardhan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 09-05-2025
I.A. No.02 of 2024
The present interlocutory application has been
preferred with a prayer for summary dismissal of the election
petition filed by the petitioner as per the mandate stipulated
under Section 86(1) of The Representation of the People Act,
1951 (hereinafter referred as 'R.P. Act') read with Order VII
Rule 11 of the Code of Civil Procedure, 1908 (hereinafter
referred as 'the Code'), on the ground of non-compliance of the
mandatory provisions contained under Sections 81, 82 and 83 of
the R.P. Act and on the ground of not disclosing any cause of
action.
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2. It appears from the record that the sole
respondent was an official candidate of Janta Dal (U) Party who
had filed his nomination paper before the Returning Officer to
contest the election of Bihar Legislative Council from 03, Saran
Graduate Constituency on 10.03.2023 and also filed an affidavit
in Form-26 duly sworn by him before the Notary Public, Chapra
on 06.03.2023 alongwith his nomination paper. The scrutiny of
the nomination papers of the candidate contesting the said
election was held on 14.03.2023. No objection was raised by
any of the candidate with regard to any defect in the nomination
papers of the sole respondent until declaration of result on
05.04.2023
. The respondent was declared elected as a Member
of Bihar Legislative Council (Graduate Seat) from 03, Saran
Graduate Constituency for which election was held on
31.03.2023 by a margin of altogether 5,951 votes. It is stated
that he had secured total 32,239 votes. However, election
petitioner being a candidate of Bhartiya Janta Party got only
26,288 votes. The respondent was declared an elected and
returned candidate.
3. The election petitioner has filed the present
election petition with a prayer to set aside the election of the
sole respondent by declaring his election as void for non-
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compliance of the provisions contained under Section 100(1)(d)
(iv) of the R.P. Act and under Article 19(1)(a) of the
Constitution of India. It is alleged by the election petitioner that
the affidavit contained in Form-26 (appended to the Conduct of
Election Rules, 1961) filed along with nomination paper by the
sole respondent is not in accordance with the mandatory
provisions pointing out that redundant sub-para not scored off,
the details of holding number and circle number of urban
property was given instead of survey number and instead of
“NO” at relevant column “ZERO” was written.
4. The sole respondent filed the written statement
denying the allegation made by the election petitioner in the
petition. It is stated that the election petition has been filed with
a purpose and motive of vexing and harassing the sole
respondent by absolutely false, untenable, flimsy and vexatious
allegations disclosing no cause of action and the same is not
maintainable and fit to be dismissed at the preliminary stage
under Section 86 of the R.P. Act because of non-compliance of
provision contained under Sections 81, 82 and 83 of the R.P.
Act. It is stated that there is no allegation of non-disclosure of
any criminal case or any property, rather the allegation is only
about manner in filling para 5, 6 and 7 of the affidavit in Form-
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26 which apparently is a misnomer, highly technical and
completely flimsy so as to disclose any cause of action or make
out a ground as specified under Section 100(1)(d)(iv) of the R.P.
Act to declare election void. It is further stated that from the
perusal of Form-26, it is clear that in para 5 details of pending
criminal cases has been clearly filled and shown giving details
of the case. In para 6 it has been clearly filled showing that in no
case the respondent had been convicted. Para 7B has been duly
filled so much that those agricultural land with survey number,
area has been filled in and with regard to urban area property, its
location, holding number and circle number and area has been
fully disclosed and filled by the respondent. As it was a self
acquired property, years of purchase and amount has also been
disclosed and hence, ‘NIL’ has been written in the column of
ancestral property relating to the spouse of the respondent.
Similarly, the details of location, holding number and circle
number and area of another urban property has been duly
disclosed and filled in para 7B(iv) of the affidavit in Form-26.
The year of self acquisition and its valuation has also been
disclosed. As the same was not an inherited property, therefore,
‘NIL’ has been filled. Thus, it cannot be said or in any manner
construed that para 5, 6, or 7 has been left blank or not filled or
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that does not furnish any information. The allegation made in
the election petition does not come under any of the grounds
enumerated under the said Sections and is not maintainable.
5. Heard Mr. P.K. Verma, learned senior counsel for
the respondent assisted by Mr. Yashraj Bardhan and Mr. S.B.K.
Manglam learned counsel for the election petitioner assisted by
Mr. Awnish Kumar, Advocate at length.
6. Learned senior counsel Mr. P.K. Verma for the
sole respondent submitted that mere perusal of the election
petition there is no allegation of non-disclosure of any criminal
case or of any property rather the allegation is only about
manner in filling para 5, 6 and 7 of the affidavit in Form- 26
which is completely flimsy which disclosed no cause of action
or make out any ground to declare the election void under
Section 100 of the R.P. Act. He further submitted that the
election petition is liable to be dismissed under Section 86 of the
R.P. Act read with Order VII Rule 11 of the Code. The election
petition is gross abuse of process of the Court as the election
petition has been filed with frivolous allegations which are
completely devoid of merit. It is further submitted that there is
no pleading on the facts as to how by the alleged clerical error
in the manner of filling of a column of affidavit in Form-26, the
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result of election insofar as it concerns, the returned candidate
has been materially affected. A mere vague and frivolous
allegation of any improper acceptance of nomination paper
without disclosing any defect or deficiency as envisaged under
Section 36 of the R.P. Act does not disclose any cause of action.
Moreso, Section 83 (1) of the R.P. Act requires that the election
petition must contain a concise statement of material facts. He
next submitted that the election petitioner has taken ground for
challenging the election by stating that the nomination paper
was improperly accepted by the Returning Officer. However, he
has not made any averment to the fact that he raised this issue of
improper acceptance before the Returning Officer and this
entitles him to make any such claim later on by election petition
without material facts being narrated and without disclosing as
to how any clerical error or omission impacted the result of
election. Since no objection was raised by the election petitioner
or any other person at the time of filing and acceptance of
nomination paper, the Returning Officer accepted the
nomination paper finding the averments and information as
substantial compliance of the legal requirements and there was
no illegality or irregularity as alleged.
7. Mr. P.K. Verma, taking this Court to the
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particulars disclosed by the respondent in Form- 26 submitted
that there was neither suppression of any material facts nor the
petitioner raised any objection in writing at the time of scrutiny
of the nomination paper by the Returning Officer, and therefore,
it could not be said that there was improper acceptance of
nomination of the respondent. He pressed into service various
provisions contained in the R.P. Act, particularly Section 100
and Section 123 to submit that allegations and averments made
in the Election Petition could never constitute “undue influence”
much less “corrupt practices” as contemplated in Section 123,
for declaring the election to be void under Section 100 of the
R.P. Act. Much reliance has been placed by him on the decision
of Hon’ble Supreme Court in case of Kanimozhi Karunanidhi
v. A. Santhana Kumar and Others reported in (2023) 4 SCR
798 to submit that the election petition filed by the election
petitioner be dismissed at the threshold under Order VII Rule 11
of the Code read with Section 83 of the R.P. Act.
8. On the other hand, learned counsel Mr. S.B.K.
Manglam for the election petitioner submitted that the election
petition has been filed by the petitioner for setting aside the
election of the sole respondent for non-compliance of provisions
contained in Section 100(1)(d)(iv) of the R.P. Act and Article
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19(1)(a) of the Constitution of India. The voter has right to
know about full particulars of a candidate who is to represent
them in Parliament/ Assemblies and such right is a fundamental
right guaranteed under Article 19(1)(a) of the Constitution of
India and filing of affidavit with blank particulars will render
the affidavit nugatory. He further submitted that in view of the
law laid down by the Hon’ble Supreme Court in Resurgence
India v. Election Commission of India & Anr. reported in
(2014) 14 SCC 189 and as per the direction of Election
Commission of India, the nomination paper would be rejected if
any column of the affidavit in Form- 26 is blank and from a bare
perusal of the affidavit filed by the sole respondent in Form- 26
along with his nomination paper, it is evidently clear that
paragraph 5 and 6 are blank. The Returning Officer improperly
accepted the nomination paper of the sole respondent. The
defect in affidavit filed by the sole respondent in Form-26 along
with nomination paper was the defect of substantial character.
The Returning Officer ought to have rejected the nomination
paper at the time of scrutiny. However, the Returning Officer
had improperly accepted his nomination paper against the law.
He further submitted that the Hon’ble Supreme Court in case of
Mairembam Prithviraj v. Pukhrem Sharatchand Singh
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reported in 2017 (2) SCC 487 held that the petitioner has
neither required to plea nor to prove that the result of election
has been materially affected as the returned candidate would not
have been able to contest the election if his nomination paper
could not have been improperly accepted by the Returning
Officer. Since the nomination of the sole respondent was
improperly accepted by the Returning Officer, his election is fit
to be declared void. He further submitted that the Hon’ble
Supreme Court in case of Union of India v. Association for
Democratic Reforms & Anr. reported in (2002) 5 SCC 294
and the instruction issued by the Election Commission in
exercise of its power under Article 324 of the Constitution of
India providing incomplete information and suppression of
material information on any of five aspects was to be treated as
fact of substantial character by the Returning Officer. The
Returning Officer was left with no option but to reject the
nomination paper of sole respondent under Section 36 of the
R.P. Act since the sole respondent had furnished incomplete
information or had suppressed material information with respect
to his immovable property as declared by him.
9. Learned counsel for the petitioner further
submitted that the law is well settled that whenever the statute
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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prescribes a particular act to be done in a particular manner and
also laid down that failure to comply with the said requirement
leads to a specific consequence. In this regard, he has referred
the judgment of Hon’ble Supreme Court in Baru Ram (Shri) v.
Shrimati Prasanni & Ors. reported in AIR 1959 SC 93. It is
also well settled that the statutory requirements of election law
have to be strictly observed. It is submitted that the case is
required to be adjudicated only after affording the opportunity to
election petitioner to adduce evidence in trial. Learned counsel
for the petitioner further submitted that since the petitioner has
valid cause of action, the election petition is maintainable and
I.A. No.02 of 2024 filed on behalf of sole respondent is liable to
be rejected.
10. This Court has given anxious consideration to
the submissions advanced on behalf of the respective parties and
also perused the election petition and the copy of nomination
paper accompanying affidavit in Form-26 by the respondent
(Annexure P-1) attached with the election petition.
11. It is now well-settled that the right to contest an
election or to challenge it by way of an Election Petition is
neither a common law right nor a fundamental right. It is a
statutory right conferred and regulated exclusively by the
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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provisions of the R.P. Act. No election dispute can be
entertained outside the ambit of the said statute. The R.P. Act
constitutes a complete and self-contained code in respect of all
matters pertaining to elections and election disputes. Further, the
applicability of the Code is limited to the extent permitted under
Section 87 of the R.P. Act. It is also well-settled that the success
of a winning candidate at an election should not be lightly
interfered with [see, Santosh Yadav v. Narender Singh
reported in (2002) 1 SCC 160 and Harsh Kumar v. Bhagwan
Sahai Rawat and Ors. reported in (2003) 7 SCC 709].
12. Part XV of the Constitution of India deals with
the provision related to ‘election’. Article 327 enables
parliament to make laws with respect to all matters relating to
elections to either Houses of Parliament or to the Houses of the
Legislature of a State. The R.P. Act enacted by the Parliament
and its object as reflected in its title is to provide for the conduct
of elections of the Houses of Parliament and to the Houses of
each State Legislature, the qualifications and disqualifications
for the membership of these Houses, the corrupt practices and
other offences at or in connection with such elections and
doubts and disputes arising out of or in connection with such
elections. Article 329 bars interference by Court in electoral
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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matters except by an election petition presented to such
authorities and in such manner as may be provided for by or
under any law made by the appropriate legislature.
13. In order to appreciate the rival contentions
raised by the learned counsel for the parties, it would be
pertinent to advert some relevant provisions contained in the
R.P. Act. Section 81 of the R.P. Act pertains to the presentation
of the Election Petition which is reproduced as under:-
“81. Presentation of petitions.–
(1) An election petition calling in
question any election may be presented on
one or more of the grounds specified in sub-
section (1) of section 100 and section 101 to
the High Court by any candidate at such
election or any elector within forty-five days
from, but not earlier than the date of election
of the returned candidate or if there are
more than one returned candidate at the
election and dates of their election are
different, the later of those two dates.
Explanation.–
In this sub-section, “elector”
means a person who was entitled to vote at
the election to which the election petition
relates, whether he has voted at such
election or not.
(2)
***
(3) …..
14. Section 82 pertains to the parties to the Election
Petition which is reproduced as under:-
“82. Parties to the petition.–
A petitioner shall join as respondents to
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(a) where the petitioner, in addition to
claiming declaration that the election of all or any
of the returned candidates is void, claims a further
declaration that he himself or any other candidate
has been duly elected, all the contesting candidates
other than the petitioner, and where no such further
declaration is claimed, all the returned candidates;
and
(b) any other candidate against whom
allegations of any corrupt practice are made in the
petition.”
15. Section 83 pertains to the contents of the
Election Petition which is reproduced as under:-
“83. Contents of petition.–(1) An election
petition–
(a) shall contain a concise statement of the
material facts on which the petitioner relies;
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges
including as full a statement as possible of
the names of the parties alleged to have
committed such corrupt practice and the
date and place of the commission of each
such practice; and
(c) shall be signed by the petitioner and
verified in the manner laid down in the Code
of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings: Provided that
where the petitioner alleges any corrupt
practice, the petition shall also be
accompanied by an affidavit in the
prescribed form in support of the allegation
of such corrupt practice and the particulars
thereof.
(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the petition.”
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16. Section 100 deals with the grounds for
declaring the election to be void. In the instant petition, the
petitioner has invoked Section 100 (1)(d)(iv) of the R.P. Act for
declaring the election of the respondent as void, which is read as
under:-
“100. Grounds for declaring
election to be void. —
(1) Subject to the provisions of
sub-section (2) if the
High court is of opinion–
(a) ……. or
(b) …….; or
(c) …….; or
(d) that the result of the election,
in so far as it concerns a returned candidate,
has been materially affected–
(i) ……..; or
(ii) ……..; or
(iii) …….; or
(iv) by any non-compliance with
the provisions of the Constitution or of this
Act or of any rules or orders made under
this Act, the High Court shall declare the
election of the returned candidate to be void.
17. Rule 4 and 4A of the Conduct of Election
Rules, 1961 pertain to the submission of nomination paper and
form of affidavit to be filed at the time of delivering nomination
paper. It is apropos to mention that Rule 4A inserted in the
Conduct of Election Rules, 1961 with effect from 03.09.2002,
mandates that the candidate or his proposer, as the case may be,
shall file an affidavit in Form-26 at the time of delivering the
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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nomination paper to the Returning Officer. The text of Rule 4A
is reproduced herein below:
“4A. Form of affidavit to be filed at
the time of delivering nomination paper.–
The candidate or his proposer, as the case
may be, shall, at the time of delivering to the
returning officer the nomination paper under
sub-section (1) of section 33 of the Act, also
deliver to him an affidavit sworn by the
candidate before a Magistrate of the first
class or a Notary in Form 26.”
18. Section 33 of the R.P. Act deals with
‘presentation of nomination papers and requirements for valid
nomination’. Scrutiny of such nomination is undertaken by the
Returning Officer under Section 36 of the R.P. Act. In terms of
Section 36(4), a Returning Officer is under a mandate not to
reject a nomination paper for a defect unless it is of substantial
character. Section 123 of R.P. Act defines ‘corrupt practices’
which includes ‘undue influence’. Insofar as the present case is
concerned, Section 123(2) of the R.P. Act is of relevance.
19. In Mangani Lal Mandal v. Bishnu Deo
Bhandari reported in (2012) 3 SCC 314 the Hon’ble Supreme
Court held that where a returned candidate is alleged to be
guilty of non-compliance with provisions of the Constitution or
the R.P. Act or any rules or orders made thereunder and his
election is sought to be declared void on the ground, it is
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essential for the election petitioner to aver, by pleading material
facts, that the result of election insofar as it concerned the
returned candidate has been materially affected by such breach
or non-observation. It was further held that it is only on the
basis of such pleading and proof that the Court would be in a
position to form an opinion and record a finding that such
breach or non-compliance has materially affected the result of
the election before election of the returned candidate could be
declared void. For the election petitioner to succeed on such
ground, viz., Section 100(1)(d)(iv), he has not only to plead and
prove the breach but also show that the result of the election,
insofar as it concerned the returned candidate, has been
materially affected thereby.
20. In L. R. Shivaramagowda and Others v. T.
M. Chandrashekar (Dead) by LRs and Others reported in
(1999) 1 SCC 666, a three-Judge bench of the Hon’ble Supreme
Court held that in order to declare an election void under
Section 100(1)(d)(iv) of the R.P. Act, it in absolutely necessary
for the election petitioner to plead that result of the election,
insofar as it concerns the returned candidate, has been materially
affected by the alleged non-compliance with the provisions of
the Constitution or the R.P. Act or the rules or orders made
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thereunder and failure to plead such material facts would be
fatal to the election petition.
21. In Ram Sukh v. Dinesh Aggarwal reported in
(2009) 10 SCC 541, the Hon’ble Supreme Court while
examining the maintainability of Election Petition filed under
Section 100(1)(d)(iv) of the R.P. Act, elaborately considered the
earlier decisions and observed that it was necessary for the
election petitioner to aver specifically in what manner the result
of the election in so far as it concerned the returned candidate
was materially affected due to omission on the part of the
Returning Officer. The Hon’ble Supreme Court in this case
having found that such averments being missing in the Election
Petition, upheld the Judgment of the High Court/Election
Tribunal rejecting the Election petition at the threshold.
22. the Hon’ble Supreme Court in Karikho Kri v.
Nuney Tayang and Anr. reported in (2024) SCC OnLine SC
519, with respect to defect of nomination paper and its
acceptance by the Returning Officer observed in para 40 and 41
as under:
“40. Having considered the issue, we
are of the firm view that every defect in the
nomination cannot straightaway be termed
to be of such character as to render its
acceptance improper and each case would
have to turn on its own individual facts,
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law on the subject also manifests that this
Court has always drawn a distinction
between non-disclosure of substantial issues
as opposed to insubstantial issues, which
may not impact one’s candidature or the
result of an election. The very fact that
Section 36(4) of the Act of 1951 speaks of
the Returning Officer not rejecting a
nomination unless he is of the opinion that
the defect is of a substantial nature
demonstrates that this distinction must
always be kept in mind and there is no
absolute mandate that every non- disclosure,
irrespective of its gravity and impact, would
automatically amount to a defect of
substantial nature, thereby materially
affecting the result of the election or
amounting to ‘undue influence’ so as to
qualify as a corrupt practice.
41. The decision of this Court in Kisan
Shankar Kathore v. Arun Dattatray Sawant,
(2014) 14 SCC 162, also demonstrates this
principle, as this Court undertook
examination of several individual defects in
the nomination of the returned candidate
and found that some of them were actually
insubstantial in character. This Court noted
that two facets required consideration –
Whether there is substantial compliance in
disclosing requisite information in the
affidavits filed along with the nomination
and whether non- disclosure of information
on identified aspects materially affected the
result of the election. This Court observed,
on facts, that non- disclosure of the
electricity dues in that case was not a
serious lapse, despite the fact that there were
dues outstanding, as there was a bonafide
dispute about the same. Similar was the
observation in relation to non-disclosure of
municipal dues, where there was a genuine
dispute as to re-valuation and re-assessment
for the purpose of tax assessment. Earlier, in
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Sambhu Prasad Sharma vs. Charandas
Mahant [2012] 6 SCR 356, this Court
observed that the form of the nomination
paper is not considered sacrosanct and what
is to be seen is whether there is substantial
compliance with the requirement as to form
and every departure from the prescribed
format cannot, therefore, be made a ground
for the rejection of the nomination paper.”
23. Having regard to the aforesaid legal position,
firstly, it is necessary to examine the averments and allegations
set-forth by the petitioner in the election petition basically on
ground that the respondent while filing affidavit contained in
Form-26 along with nomination paper is not in accordance with
the mandatory provisions of law. Secondly, whether the defect
made by respondent in the aforesaid affidavit is a substantial
defect or not.
24. The election petition has been filed by the
election petitioner challenging the nomination of the sole
respondent relying on the several grounds, out of which the
relevant paragraphs are reproduced as under:
“1. ….
2. ….
xxxx
24. That, however from bare perusal of paragraph no.5
(II) of the Affidavit in Form-26 filed by the sole
Respondent along with his nomination paper, it would be
evidently clear that nothing has been mentioned by the
sole Respondent either in paragraph no.5(1) or in
paragraph no.5(II) of the affidavit and, therefore,
information in both the paragraphs of paragraph no.5 are
blank.
25. That, similar is the position in respect of paragraph
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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Respondent along with his nomination paper. He had
again failed to mention any information either in
paragraph no.6(1) or in paragraph no.6 (II) and,
therefore, paragraph no.6 at affidavit was again left
blank.
26. That, in paragraph no.7(A) of the affidavit, a
candidate is required to declare about the movable assets
of the candidates, his/her spouse and the dependant and in
paragraph no.7 (B),a candidate is required to declare
about immovable assets.
27. That, in paragraph no.7B(II),a candidate is required
to declare about the non-agricultural land, its location
and the survey number. He is further required to declare
about the area of land in square feet and whether the
property is inherited property or it is self acquired
property.
28. That, in paragraph no.7 (B) of the Affidavit filed by
the sole Respondent in Form-26 along with the
nomination paper, he had declared about two non-
agricultural land in the name of his spouse but he had not
disclosed the survey number. In the column where a
candidate is required to declare as to whether the property
is inherited property or not, the information furnished is
“Shunya” (Zero) which does not satisfy the requirement of
the prescribed format of the affidavit since according to
the format, the answer has to be “Yes” or “No”.
29. That, similar is the position with respect to the
information given in paragraph no.7B(IV) of the Affidavit
filed by the sole Respondent in Form-26 along with the
nomination paper with respect to declaration regarding
residential building in the name of his spouse. In
paragraph no.7B(IV) where the sole Respondent had
declared about the residential building in the name of his
spouse situated in Dahiawan Chapra Ward No.19 but
again survey number is missing and in the column meant
for declaration as to whether the said property is inherited
property, the information given is “Shunya” (Zero) and in
the column meant for cost of land at the time of purchase,
the information again given is “Shunya” (zero) whereas in
the column meant for declaration regarding the date of
purchase, the year 2004-05 has been mentioned.
30. That, therefore, whereas the sole Respondent admits
that the residential building in the name of his wife
located at Dahiawan Chapra, Ward No.19 is a purchased
property of the sole Respondent but in the column meant
for declaration of purchase value of the property, the
information given is “Shunya” (zero) and in the column
where a candidate is required to declare as to whether the
property is inherited property, the information again is
“Shunya” zero and, therefore, the affidavit filed by the sole
Respondent in Form-26 along with the nomination paper
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does not furnish the full information regarding immovable
assets of the sole Respondent and his spouse and
therefore, the sole Respondent has violated the
fundamental right of the citizen under Article 19(1)(a) of
the Constitution of India.
31. That, in view of the law laid down by the Hon’ble
Supreme Court in Resurgence India case, the Election
Commission of India had also issued a direction to reject
a nomination paper if any column of the affidavit in Form-
26 is blank.
32. That, from bare perusal of the affidavit filed by the
sole Respondent in Form-26 along with his nomination
paper, it is evidently clear that paragraph nos.5 and 6 are
blank, yet the Returning Officer improperly accepted the
nomination of the sole Respondent, since he was
contesting the election as an official candidate of Janta
Dal United Political Party, a party ruling the State for last
about 18 years.
33. That, in Resurgence India case, their Lordships had
clearly held that filing of affidavit with blank particulars
will render the affidavit nugatory and that can be a
ground of rejection of the nomination paper, however, the
Returning Officer overlooked the law regarding filing of
affidavit with correct information as also the punishment
prescribed for filing affidavit with blank particulars and
had improperly accepted the nomination of returned
candidates.
34. That, in view of the judgment of the Hon’ble Supreme
Court in the case of Union of India Vs. Association of
Democratic Reforms (2002) 5 SCC-294, the Election
Commission of India had issued a letter dated 28.06.2022
to all the Returning Officers directed that full and
complete information relating to five aspects which were
mentioned in the judgment has to be furnished. The
Commission further directed that providing incomplete
information or suppression of material information on any
of the five aspects was to be treated as a defect of
substantial character by the Returning Officer.
35. That, if according to the instruction issued by the
Election Commission of India in exercise of its power
under Article 324 of the Constitution of India providing
incomplete information and suppression of material
information on any of the five aspects was to be treated as
a defect of substantial character by the Returning Officer,
the Returning Officer of 03, Saran Graduate Constituency
was left with no option but to reject the nomination of sole
Respondent under Section -36 of the Representation of the
People Act, 1951 since the sole Respondent had furnished
incomplete information or had suppressed material
information with respect to his immovable property as
declared by him in paragraph no.7(B) (III) and (IV) of the
Affidavit in Form-26.
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36. That, since the defect in Affidavit filed by the sole
Respondent in Form-26 along with the nomination paper
was the defect of substantial character, the Returning
Officer ought to have rejected the nomination paper at the
time of scrutiny however, the Returning Officer had
improperly accepted his nomination paper against the
law.
37. That, in view of the aforesaid since the nomination of
the sole Respondent was improperly accepted by the
Returning Officer, his election is fit to be declared void
under Section 100(1) (c) read with Section 100(1)(d) (iv)
of the Representation of the People Act, 1951.
38. That, since it is the nomination paper of the returned
candidate i.e. the sole Respondent which was improperly
accepted by the Returning Officer at the time of scrutiny
of nomination paper, in view of the law laid down by the
Hon’ble Supreme Court in the case since reported in
1973(2) SCC-45 and in the case of Mairembam Prithviraj
Vs. Pukhrem Sharatchand Singh since reported in 2017(1)
PLJR (SC)-15, the petitioner is neither required to plead
nor to prove that the result of election has been materially
affected as the returned candidate would not have been
able to contest the election if his nomination paper would
not have been improperly accepted by the Returning
Officer.
39. That, the petitioner has not filed any other election
petition challenging the election of the sole Respondent
before this Hon’ble High Court earlier for which the
election was held on 31.03.2023.
40. That, the petitioner has deposited a sum of Rs.2,000/-
by way of security as provided under Section 117 of the
Representation of People Act, 1951 vide Challan No.J-4
dated 11.04.2023.”
25. In the present election petition, the sole
respondent submitted his nomination paper along with the
affidavit in Form-26 wherein instead of submitting the survey
number, the details of holding number and circle number of
urban property was filled and at a column instead of ‘NO’, it
was filled ‘ZERO’. The petitioner seeks for declaring the
election of the respondent-returning candidate to be void on the
ground contemplated under Section 100(1)(d)(iv) of R.P. Act as
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the respondent had not complied with the requirements of the
said provision and the Returning Officer ought to have rejected
the nomination paper at the time of scrutiny, however, it was
improperly accepted, which is against the provision of the law.
The affidavit mandated under Form-26 of the Conduct of
Election Rules, 1961 serves as an essential instrument to ensure
transparency in the electoral process. It requires a candidate to
furnish complete and truthful information regarding his/her
criminal antecedents, assets and liabilities and educational
qualifications. The significance of this affidavit lies in its direct
connection to the fundamental right of the voter under Article
19(1)(a) of the Constitution of India as affirmed by the Hon’ble
Supreme Court in Union of India v. Association for
Democratic Reforms & Anr. (supra) which recognized the
right of voters to know as an integral part of free speech and
expression.
26. The Hon’ble Supreme Court in the case of
Resurgence India v. Election Commission of India & Anr.
(supra) emphasized that the filing of an affidavit in the
prescribed form is not an empty formality and non-compliance
would defeat the very purpose of informed electoral choice.
27. A defect in the affidavit under Form-26 cannot
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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be viewed merely through the lens of technicality. When the
defect pertains to material omissions or misstatements that
hinder the voter’s ability to make an informed choice, it assumes
the character of a “substantial defect”. Therefore, a ‘substantial
defect’ in Form-26 is to be understood as one which materially
affects the completeness, accuracy or veracity of the affidavit
and thereby impairs the right of the electorate to be informed.
Such a defect cannot be condoned as a curable irregularity, but
must be viewed as going to the root of the nomination process,
warranting appropriate legal consequence including potential
rejection of the nomination or challenge to the election.
28. On perusal of this Election Petition, it is found
that the Election Petitioner has alleged that the Returning
Officer ignored the defects in filing of the affidavit with
nomination paper by the respondent but he has not stated
material facts which are required to prove the cause of action or
defence. In context thereto, the election petitioner has not made
any averment as to the basic facts which constitute the
ingredients with respect to prove non-compliance with the
provision of the Constitution or of the R.P. Act or any rules or
orders made under the Act which would have materially affected
the outcome of the concerned election. Section 83(1)(a) of R.P.
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Act incorporates that an election petition shall contain concise
statement of material facts on which the election petitioner
relies to support the allegation made. “Material facts” are facts
which if established would give the petitioner the relief asked
for. The test required to be answered is whether the same could
have given a direct verdict in favour of the election petitioner in
case the returned candidate had not appeared to opposed the
election petition on the basis of facts pleaded in the petition. The
instant election petition is completely silent on any specific
averment indicating how such acceptance materially affected the
outcome of the election insofar as it relates to the respondent.
29. There is a distinction between ‘material facts’
and ‘particulars’. ‘Material facts’ are primary or basic facts
which must be pleaded by the plaintiff or defendant in support
of the case set up by him either to prove his cause of action or
defence. ‘Particulars’, on the other hand, are details in support
of material facts pleaded by the parties. The facts by means of
which material facts are proved in the nature of particular or
evidence and they are not facts in issue, but only relevant facts
required to be proved at the trial in order to establish the facts in
issue. Unlike ‘material facts’ which provides the basic
foundation on which the entire edifice of the election petition is
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build, ‘particulars’ are to be stated to ensure that opposite party
is not taken by surprise.
30. It is a well-established principle that the Court
is bound to examine the plaint independently, regardless of any
written statement or denial by the respondent, and reject it if it
fails to disclose a cause of action. The expression ’cause of
action’ means every facts which it would be necessary for the
plaintiff/petitioner to prove, if traversed, in order to support his
right to the judgment of Court. For the purpose of determining
whether a cause of action exists, the Court must confine its
scrutiny strictly to the averments made in the plaint/petition.
Vague and imprecise pleadings, which potentially open the door
to unrestricted evidence, have consistently been disapproved by
the judiciary. It is trite law that no amount of evidence can
rectify a fundamental defect in the pleadings.
31. The Hon’ble Supreme Court with regard to the
scope of Order VII Rule 11 of the Code in the judgment in
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) and Ors.
reported in (2020) 7 SCC 366 made the following observations:
“23.2. The remedy under Order 7 Rule 11 is an
independent and special remedy, wherein the Court
is empowered to summarily dismiss a suit at the
threshold, without proceeding to record evidence,
and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
27/34terminated on any of the grounds contained in this
provision.
23.3. The underlying object of Order 7 Rule 11 (a)
is that if in a suit, no cause of action is disclosed,
or the suit is barred by limitation under Rule 11
(d), the Court would not permit the plaintiff to
unnecessarily protract the proceedings in the suit.
In such a case, it would be necessary to put an end
to the sham litigation, so that further judicial time
is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, 1986
Supp. SCC 315 this Court held that the whole
purpose of conferment of powers under this
provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should
not be permitted to waste judicial time of the court,
in the following words : (SCC p.324, para 12)
“12. …The whole purpose of conferment of
such power is to ensure that a litigation which is
meaningless, and bound to prove abortive should
not be permitted to occupy the time of the Court,
and exercise the mind of the respondent. The sword
of Damocles need not be kept hanging over his
head unnecessarily without point or purpose. Even
if an ordinary civil litigation, the Court readily
exercises the power to reject a plaint, if it does not
disclose any cause of action.”
23.5. The power conferred on the court to
terminate a civil action is, however, a drastic one,
and the conditions enumerated in Order 7 Rule 11
are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the
Court to determine whether the plaint discloses a
cause of action by scrutinizing the averments in the
plaint [Liverpool & London S.P. & I Assn. Ltd. v.
M.V. Sea Success I, (2004) 9 SCC 512], read in
conjunction with the documents relied upon, or
whether the suit is barred by any law.
23.9. In exercise of power under this provision, the
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Court would determine if the assertions made in the
plaint are contrary to statutory law, or judicial
dicta, for deciding whether a case for rejecting the
plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant
in the written statement and application for
rejection of the plaint [Sopan Sukhdeo Sable v.
Charity Commr. (2004) 3 SCC 137] on the merits,
would be irrelevant, and cannot be adverted to, or
taken into consideration.
23.11. The test for exercising the power under
Order VII Rule 11 is that if the averments made in
the plaint are taken in entirety, in conjunction with
the documents relied upon, would the same result in
a decree being passed. This test was laid down in
Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea
Success I & Anr., (2004) 9 SCC 512) which reads
as: (SCC p.562, para 139)
“139. Whether a plaint discloses a cause of
action or not is essentially a question of fact. But
whether it does or does not must be found out from
reading the plaint itself. For the said purpose, the
averments made in the plaint in their entirety must
be held to be correct. The test is as to whether if the
averments made in the plaint are taken to be correct
in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co.
(2007) 5 SCC 614 the Court further held that it is
not permissible to cull out a sentence or a passage,
and to read it in isolation. It is the substance, and
not merely the form, which has to be looked into.
The plaint has to be construed as it stands, without
addition or subtraction of words. If the allegations
in the plaint prima facie show a cause of action, the
court cannot embark upon an enquiry whether the
allegations are true in fact. D. Ramachandran v.
R.V. Janakiraman [D. Ramachandran v. R.V.
Janakiraman, (1999) 3 SCC 267; See also Vijay
Pratap Singh Vs. Dukh Haran Nath Singh, AIR
1962 SC 941].
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23.13. If on a meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and
without any merit, and does not disclose a right to
sue, the court would be justified in exercising the
power under Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC
may be exercised by the Court at any stage of the
suit, either before registering the plaint, or after
issuing summons to the defendant, or before
conclusion of the trial, as held by this Court in the
judgment of Saleem Bhai v. State of Maharashtra
[Saleem Bhai v. State of Maharashtra, (2003) 1
SCC 557]. The plea that once issues are framed,
the matter must necessarily go to trial was repelled
by this Court in Azhar Hussain case [Azhar
Hussain v. Rajiv Gandhi ,1986 Supp SCC 315].
23.15. The provision of Order VII Rule 11 is
mandatory in nature. It states that the plaint
“shall” be rejected if any of the grounds specified
in clause (a) to (e) are made out. If the Court finds
that the plaint does not disclose a cause of action,
or that the suit is barred by any law, the Court has
no option, but to reject the plaint.”
32. The Hon’ble Supreme Court, while considering
the legal position with regards to the non-compliance of the
requirement of Section 83(1)(a) of the R.P. Act and the rejection
of Election Petition under Order VII Rule 11, of the Code, in the
case of Karim Uddin Barbhuiya v. Aminul Haque Laskar &
Ors. reported in (2024) 4 SCR 523 has relied upon the case of
Kanimozhi Karunanidhi (supra), wherein it has been observed
as under:
“28. The legal position enunciated in
afore-stated cases may be summed up as under:-
i. Section 83(1)(a) of RP Act, 1951
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concise statement of material facts on which the
petitioner relies. If material facts are not stated in
an Election petition, the same is liable to be
dismissed on that ground alone, as the case would
be covered by Clause (a) of Rule 11 of Order 7 of
the Code.
ii. The material facts must be such facts
as would afford a basis for the allegations made in
the petition and would constitute the cause of
action, that is every fact which it would be
necessary for the plaintiff/petitioner to prove, if
traversed in order to support his right to the
judgement of court. Omission of a single material
fact would lead to an incomplete cause of action
and the statement of plaint would become bad.
iii. Material facts mean the entire bundle
of facts which would constitute a complete cause of
action. Material facts would include positive
statement of facts as also positive averment of a
negative fact, if necessary.
iv. In order to get an election declared as
void under Section 100(1)(d)(iv) of the RP Act, the
Election petitioner must aver that on account of
non-compliance with the provisions of the
Constitution or of the Act or any rules or orders
made under the Act, the result of the election, in so
far as it concerned the returned candidate, was
materially affected.
v. The Election petition is a serious
matter and it cannot be treated lightly or in a
fanciful manner nor is it given to a person who
uses it as a handle for vexatious purpose.
vi. An Election petition can be summarily
dismissed on the omission of a single material fact
leading to an incomplete cause of action, or
omission to contain a concise statement of material
facts on which the petitioner relies for establishing
a cause of action, in exercise of the powers under
Clause (a) of Rule 11 of Order VII CPC read with
the mandatory requirements enjoined by Section 83
of the RP Act.”
33. It is well-established principle that in Election
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Petition, the pleadings must be precise, specific and
unambiguous. The petition must disclose a complete cause of
action by setting out material facts constituting the grounds
envisaged under Section 100 of the R.P. Act. Furthermore,
compliance with the mandatory requirements of Sections 81 and
83 of the R.P. Act is imperative. Any omission of a single
material fact, or failure to present a concise statement of
material facts upon which the petitioner relies, renders the
petition defective. Such a defect is fatal and would warrant
rejection of the petition under Order VII Rule 11 of the Code,
read with Sections 83 and 87 of the R.P. Act.
34. It is incumbent upon the election petitioner to
plead all material facts i.e., those which are primary and basic
facts and which form the foundation of the case and establish a
complete cause of action. The legal position in this regard stands
well-settled by the decision of the Hon’ble Supreme Court in
Azhar Hussain v. Rajiv Gandhi reported in AIR 1986 SC
1253, wherein, relying on earlier authoritative pronouncements
in Samant N. Balkrishna & Anr. v. George Fernandez &
Ors. reported in (1969) 3 SCC 238 and Shri Udhav Singh v.
Madhav Rao Scindia reported in (1977) 1 SCC 511, it was
held that an election petition which fails to disclose material
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facts is not an election petition in the eyes of law. It was further
observed that all facts essential to constitute a complete cause of
action must be pleaded, and the omission of even one such fact
constitutes non-compliance with the mandatory provisions of
Section 83(1)(a), thereby justifying dismissal of the petition at
the threshold. Therefore, an Election Petition that fails to
disclose a cause of action is liable to be dismissed at the
threshold. The cause of action for challenging the validity of an
election must strictly pertain to the grounds enumerated under
Section 100 of the R. P. Act. As laid down in Bhagwati Prasad
Dixit ‘Ghorewala’ v. Rajeev Gandhi reported in (1986) 4 SCC
78 and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi
reported in 1987 SCC OnLine SC 626, where the averments in
the petition do not disclose the statutory grounds contemplated
under Section 100, or fail to meet the mandatory requirements
of Sections 81 and 83 of the R.P. Act, such pleadings are liable
to be struck off, and the petition is liable to be rejected under
Order VII Rule 11 of the Code, 1908.
35. It is not the case of the petitioner that the
information furnished by respondent in said Form-26 were false
in para 5 and 6 when he has already disclosed the details of all
the criminal cases pending against him and details of his
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property.
36. The argument of learned counsel for the
petitioner that even if the election petition is liable to be
dismissed ultimately, it should have been dismissed only after
affording an opportunity to the election petitioner to adduce
evidence in support of his allegation in the petition is not
tenable. The Court trying an election petition can act in exercise
of its power under Order VII Rule 11 of the Code to ensure that
meaningless litigation, which is otherwise bound to prove
abortive, should not be permitted to occupy the judicial time of
the Courts. The pendency of an election petition is likely to
inhibit the elected representative of the people in discharge of
his public duties for which the electorate have reposed
confidence in him.
37. It is also noteworthy that a case falling under
Section 100(1)(d)(iv) requires proof of the further fact that the
result of the election was materially affected by the corrupt
practices. It is mandatory to state when clause (d) (iv) of Section
100 (1) is invoked as to how the result of election was
materially affected by improper acceptance of the nomination
form of the respondent. In the absence of such material
pleadings, no cause of action is made out under Section 100(1)
Patna High Court E.P. No.1 of 2023 dt.09-05-2025
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(d)(iv) of the R.P. Act.
38. In the present election petition, there is no
averment made as to how non-compliance of the mandate in the
particulars in the affidavit of the respondent had materially
affected the result of the election, so far as to attract the ground
under Section 100(1)(d)(iv) of the R.P. Act, for declaring the
election to be void. The omission to state such vital and basic
facts has rendered the election petition liable to be dismissed
under Order VII Rule 11 (a) of the Code read with Section 86 of
the R.P. Act.
39. In view of the above matter and the reasons as
discussed above, the I.A. No. 2 of 2024 stands allowed and
hence, the Election Petition No. 1 of 2023 deserves to be
dismissed.
40. The Election Petition is accordingly dismissed.
(Sunil Dutta Mishra, J)
harish/-
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