THE HONBLE SRI JUSTICE [ENTITY] E.A Nos.329 of 2015 nd 02-08-2016 [ENTITY]. Petitioner/Respondent No.1 [ENTITY] and 7 others . Respondents Counsel for Petitioner : Sri [ENTITY] appearing for Sri [ENTITY] Counsel for Respondent No.1 : Sri [ENTITY] <Gist: >Head Note: ? Cases referred: 1) 19[SECTION] (1) (Supp) SCC 315 2) (2009) 10 SCC 541 3) 2005 (3) ALD 47 4) (2001) 8 SCC 233 5) (2015) 1 SCC 129 6) (2011) 7 SCC 721 7) (2007) 3 SCC 617 8) (2014) 14 SCC 162 9) (2015) 3 SCC 467 10) AIR 2014 SC 344 11) (2007) 11 SCC 1 12) AIR 2005 AP 428 HONBLE SRI JUSTICE [ENTITY] E.A.Nos.329 and 330 of 2015 in [CASE NUMBER] and [CASE NUMBER] COMMON ORDER:
[CASE NUMBER] is filed by the petitioner/1st respondent under [SECTION]/[SECTION] of [ACT] with a prayer to strike out the averments in paragraph Nos.2, 9 to 11 in the Election Petition on the ground that they are frivolous, scandalous and vexatious and he also filed [CASE NUMBER] under [SECTION] of [ACT] r/w [SECTION] of [ACT] (for short [ACT]) seeking dismissal of Election Petition in limini.
2) The parties are referred as they are arrayed in the two petitions.
3) The factual matrix of the case is thus: a) The present petitioner and respondents 1 to 7 are the contesting
candidates for election of 284Punganur Assembly Constituency. The petitioner was fielded by Y.S.R.C.P. Party, whereas the 1st respondent belongs to Telugu Desam Party. The other respondents belong to other parties and some are independents. The scrutiny of the nominations was held on 21.04.2014, election was held on 07.05.2014 and results were declared on 16.05.2014. The petitioner got 1,04,5[SECTION] votes and he was declared as elected. The 1st respondent got 72,856 votes and he stood second. The other contesting candidates lost their deposits.
b) While so, during the course of scrutiny, the 1st respondent challenged the two sets of nominations filed by the petitioner on the following five objections:
1) Objection No.1: The petitioner herein, who filed nominations has failed to sign on bottom of each and every page of the affidavits in Form-26 as contemplated under [ACT] and also deliberately violated the conduct of Election Rules.
2) Objection No.2: The Petitioner as a candidate failed to fill up the affidavit at
a) The column No.4 and Column No.2 under the head of total income shown in Income Tax Returns.
b) The two sets of affidavits at Column No.6 have not properly strike off which ever not applicable.
c) The petitioner in his two sets of affidavits kept blank at Column No.8 (B) (III) where the words stand of Approximate Current market Price of at Part-B of (11) abstract of the details given in (1) to (10) of Part-A. This is mandatory as per the conduct of Election Rules and also the recent Apex Court judgment, circulated under Instruction No.18 to the Returning Officer.
3) Objection No.3: The petitioner has not signed on each and every page in the affidavit of Form-26 as contemplated under [ACT] and also contemplated under Hand Book of Returning Officers-2014 under [SECTION].
4) Objection No.4: The petitioner in his affidavit at Column No.6 has not properly struck out whichever not applicable.
5) Objection No.5: The proxy of the petitioner namely [ENTITY] did not file his affidavit properly and also not put his signatures and date on each and every page of Form-26. Later he has withdrawn his nomination.
c) He raised the above said objections before 8th respondent who is Returning Officer who, in his orders in [CASE NUMBER] dt.21.04.2014 rejected the said objections. Hence, the 1st respondent filed [CASE NUMBER] challenging the election of the petitioner and prayed to declare his election as null and void and set aside the same and in turn declare the 1st respondent as duly elected.
4) In turn, challenging the aforesaid Election Petition, the petitioner filed the above two petitions one seeking to strike out the averments made in paras 2, 9 to 11 and another petition to dismiss the EP in limini. The two petitions are filed with same averments.
a) The main averment in the aforesaid petitions is that the election petition does not disclose any cause of action and it is bereft of material facts and material particulars. In the election petition the 1st respondent has not demonstrated as to how the order of Returning Officer was incorrect or wrong. On the other hand, he raised the same objections and filed the election petition. Therefore, there is no cause of action for the election petitioner. Since the election petition is bereft of material facts showing how the order passed by the Return Officer is wrong, the averments made in paras 2, 9 to 11 of the election petition are liable to be struck out and since there is no cause of action the election petition is liable to be rejected.
b) The 1st respondent filed common counter in the above two petitions wherein he referred five objections filed by him before the 8th respondent and tried to justify how those objections were legally valid and how the 8th respondent erred in rejecting his objections and as such how the instant petitions are not maintainable.
c) Additionally, the 1st respondent took an objection that the petitioner has not disclosed some of his assets and that of his wife and played fraud on the election authorities and due to the suppression of material facts his nomination is liable to be rejected and consequently his election is liable to be set aside. In his counter he gave a list of both the properties which the petitioner has disclosed and allegedly suppressed. He thus prayed to dismiss the two EAs.
d) Refuting the counter allegations, the petitioner filed reply affidavit wherein it is contended that the 1st respondent set up new case in its counter affidavit making fresh allegations which were not made in the election petition and therefore they cannot be countenanced.
5) It may be noted that since the objection relating to alleged suppression of some of the assets of the petitioner and his wife is a new ground taken for the first time in the common counter but not in the original election petition or before the 8th respondent at the time of scrutiny, this Court on 11.07.2016 brought the said fact to the notice of both parties and heard in that regard.
Thereafter, on 13.07.2016 the 1st respondent filed a Memo into the Court intimating that he was not pressing the additional objection taken by him in his counter relating to the assets of the petitioner/1st respondent for deciding the two EAs.
6) Heard Sri [ENTITY], learned Senior Counsel representing Sri [ENTITY], learned counsel for petitioner and Sri [ENTITY], learned counsel for 1st respondent. Notice sent to R2, 4 and 6 served but no representation on their behalf. Notice sent to R3, R7 and R8 not yet returned served. Notice to R5 served.
7) The two petitions are filed on the ground that the 1st respondent filed the election petition to set aside the election of the petitioner without disclosing any cause of action. The prime contention of the petitioner is that in the election petition the 1st respondent only repeated the five objections raised by him before the Returning Officer i.e. 8th respondent which were negatived by a speaking order. The 1st respondent failed to give any clarification as to how the order passed by 8th respondent is factually and legally erroneous. Therefore, the election petition filed is totally bereft of any cause of action since he failed to demonstrate in the petition as to how the order of the 8th respondent is impugnable.
a) Learned senior counsel, Sri [ENTITY] sought to project what he meant by lack of material facts and cause of action in the election petition filed by 1st respondent. Making a conjunctive study of [SECTION], [SECTION] and [SECTION] of [ACT], he would expatiate that as per [SECTION] of [ACT] an election petition can be presented on one or more grounds specified in [SECTION] and [SECTION] and as per [SECTION], an election petition shall contain a statement of material facts on which the petitioner relies and shall set-forth full particulars of corrupt practices adopted by respondent with requisite details. Then taking the Court through [SECTION] he submitted, in the present context the ground mentioned under [SECTION] is relevant as it lays down that an election of the returned candidate can be declared as void if the result of the election has been materially affected by the improper acceptance of any nomination or for other reasons mentioned in that ground. Learned counsel argued according to 1st respondent, the nomination of petitioner was improperly accepted by the Returning Officer. Having presented the election petition on that ground, learned counsel emphasized, the 1st respondent must furnish all the relevant material facts showing how the Returning Officer made an improper acceptance of the nomination filed by the petitioner. In other words, he should make clear cut pleadings in the election petition as to how the impugned order of the Returning Officer in rejecting the objections raised by 1st respondent and accepting the nomination of the petitioner was erroneous. Then only such pleadings would constitute material facts as envisaged under [SECTION]. He further argued that even mere providing such material facts is not sufficient to declare the election void but he has also to establish as to how such improper acceptance materially affected the result of returned candidate. In this case, he vehemently argued, except mentioning that his objections were improperly rejected by the Returning Officer, the 1st respondent has failed to furnish the material facts demonstrating how the 8th respondent made improper acceptance of the nomination of instant petitioner and further failed to plead how by such improper acceptance the election of petitioner was materially affected. Handicapped by lack of material facts the election petition suffered want of cause of action. Hence, the election petition shall be liable to be rejected and paras 2, 9 to 11 in election petition shall be struck out. He further argued that when the Court is convinced that the election petition is woefully bereft of material facts and cause of action, it can reject the petition summarily without the necessity of conducting trial.
b) Learned senior counsel relied upon the following citations explaining the terms material facts, material particulars, cause of action and affect of non-disclosure of material facts in the context of election petition.
1. [PRECEDENT]
2. [PRECEDENT]
3. [PRECEDENT]
4. [PRECEDENT]
8) Per contra, remonstrating the two petitions, learned counsel for 1st respondent, Sri [ENTITY] argued that he furnished all the relevant material facts in the election petition and therefore the two interlocutory applications which are aimed at delaying the trial do not merit any consideration. He relied upon the decision of the Apex Court in [PRECEDENT] on the proposition that the pleadings are when taken as a whole disclose a cause of action, the election petition shall not be thrown out at the threshold under [SECTION] [ACT]. He also relied upon the decisions of the Apex Court in [PRECEDENT] on the proposition that the phrase material facts as used in [SECTION] of [ACT] has not been defined by the said Act and therefore, the said fact has to be understood in the context of each case and no rule of universal application is possible to be laid down in that regard.
9) Then learned counsel tried to expound how the objections taken by the 1st respondent before the Returning Officer are valid and would, if accepted, invalidate the nomination of the petitioner.
a) Referring the objection No.1 & 3 which are similar, he argued that [SECTION] of [ACT] postulates that the deponent has to sign at the foot of each page of the affidavit but in contrast, the petitioner in both sets of his nomination signed only in the last page of affidavit at the place of verification and in view of gross infraction of [SECTION] his nomination is liable to be rejected in limini. However, the Returning Officer relying on Hand Book for Returning Officer-2014 erroneously held as if the candidate has to sign only on the last page of the affidavit and negatived his contention. He would argue that [SECTION], rather than the Hand Book, would govern the method of filing affidavits.
b) Then referring to sub-objection (a) in main objection No.2, he argued that in Sl.No.2 of item No.4 under the heading total income shown in IT returns the petitioner left the concerned space blank by not furnishing the total income shown in IT Returns of [ENTITY], w/o petitioner. He vehemently argued such non-disclosure of the income amounts to suppression of material facts and under [SECTION] of [ACT], the voter has a right to know the assets and liabilities of the contesting candidate and in view of non-disclosure of said material fact, the Returning Officer ought to have rejected the nomination in limini. In this regard, he relied upon the decision of the Apex Court in [PRECEDENT] . Learned counsel argued that Returning Officer erroneously rejected his objection on the ground that though in one set of the nomination he left the concerned space as blank, in other set, the petitioner filled the relevant space as not applicable and thus improperly accepted his nomination. Learned counsel contended that a candidate is not entitled to file two affidavits under [SECTION]. On the other hand, the Election Commission of India in its Notification No.3/4/12/SDR dt.24.08.2012, made it clear that with the amendment of [SECTION], all candidates shall file only one affidavit in revised [SECTION] notified on 01.08.2012 and hence the Returning Officer was not justified in accepting the second affidavit of the petitioner as correct one.
c) Then referring sub-objection (b) in main Objection No.2 and Objection No.4 which are similar, he argued that in Item No.6, the petitioner did not strike out the words (i.e, one among I have been/have not been) whichever is not applicable to his case and thereby he willfully suppressed the crucial particulars relating to his involvement and conviction in offences if any. He relied upon the decision reported in [PRECEDENT] to buttress his contention that non-disclosure of criminal antecedents of a candidate would deprive the voters of making informed choice of candidate which eventually promotes criminalization of politics and hence, the election of such candidate is liable to be declared null and void.
d) Referring sub-objection (c) in main Objection No.2, he argued that in Item No.8 (III) of the Part-B of the affidavit under the heading Approximate Current Market Price, the petitioner left the concerned space as blank. He forcibly argued that as per the dictum of Apex Court in [PRECEDENT] case the candidate must fill all the columns and not to leave the particulars blank and in that view, his nomination merits rejection but the Returning Officer biasedly accepted it.
e) Finally, referring Objection No.5, learned counsel argued that the proxy of the 1st respondent namely [ENTITY] did not file the affidavit properly and also not put his signatures and date on each and every page of [SECTION] but ofcourse later he has withdrawn his nomination.
f) He thus argued that all the objections taken by him before the Returning Officer would cut-across the nomination of the petitioner and since the 8th respondent/Returning Officer failed to consider them in proper manner, he was constrained to file the Election Petition wherein he elaborated all the required material facts showing the prejudice caused to him and hence it is preposterous for the petitioner to contend that his election petition is devoid of material facts and cause of action. He thus prayed to dismiss the two petitions.
10) The points that arise for determination are: (i) What does the terms material facts and cause of action connote with reference to an Election Petition? (ii) Whether R.1/Election petitioner has pleaded the relevant material facts and cause of action to proceed with the trial?
(iii) If point No.2 is held in negative, whether the Election Petition can be rejected in limini without conducting trial?
(iv) To what relief? 11) POINT No.1: [SECTION] of [ACT] deals with the presentation of
Election Petitions to High Court. As per [SECTION], an Election Petition calling in question any election may be presented on one or more of the grounds specified in [SECTION] and [SECTION] to the High Court by any candidate. Then [SECTION] is important as it lays down the contents of the petition. Those sections are:
[SECTION] - Presentation of petitions (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [SECTION] and [SECTION] 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.
[SECTION]: 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 [ACT] 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.
Then [SECTION] deals with the grounds for declaring Election Petition void. It reads thus:
[SECTION] - Grounds for declaring election to be void (1) Subject to the provisions of sub-section (2) if 1[the High court] is of opinion-
(a) xx xx
(b) xx xx
(c) xx xx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the [ACT] 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.
12) So cumulatively, the above provisions would spell that an Election Petition can be presented with one or more of the grounds specified in sub-
[SECTION] and [SECTION]. Then [SECTION] of the [ACT] speaks of the contents of an Election Petition. It lays down that the Election Petition shall contain a concise statement of the material facts on which the petitioner relies. As per [SECTION], an election petitioner in order to seek the election of the opponent declared void, shall establish not only that the nomination of the returned candidate was improperly accepted but also that by such improper acceptance the election of the concerned returned candidate has been materially affected. The above is the law concerning to election petitions.
13) The two EAs. are filed on the main plank of contention that the Election Petition is bereft of the material facts and cause of action and therefore, Paragraphs 2, 9 to 11 are liable to be struck-off and the Election Petition has to be rejected in limini. It is in this backdrop, we need to study how the two terms material facts and cause of action have been explained in the context of Election Petition. The Apex Court in a number of judgments happened to explain these two terms.
14a) in [ENTITY] case (1 supra) Honourable Apex Court explained the terms material facts and particulars thus:
Para-14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression 'material facts and particulars', which the election petitioner shall incorporate in his petition by virtue of [SECTION] of the Act.
(1) What are material facts and particulars? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. [PRECEDENT]. [CASE NUMBER].
b) In [ENTITY] case (2 supra) the Apex Court observed thus:
Para-13 The phrase "material facts" has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, "material facts" are facts upon which the plaintiff's cause of action or defendant's defence depends. (See: [PRECEDENT]). Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are "material facts". Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down.
Para-14: x x xx xx xx Para-15: At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice distinction between the phrases "material facts" as appearing in [SECTION]" as appearing in [SECTION]. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. "Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise. Para-16. The distinction between "material facts" and "particulars" and their requirement in an election petition was succinctly brought out by this Court in [PRECEDENT]. (7 supra) wherein [ENTITY], J., stated thus:
50. There is distinction between facta probanda (the facts required to be proved i.e. material facts)and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probantia (material facts) are proved and which are in the nature of facta probanda (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.
c) In [ENTITY] case (3 supra) learned single Judge of this High Court observed thus:
Para-43 The Apex Court in the case of [PRECEDENT] also held that failure to plead material facts is fatal to the election petition. The absence of material facts can be cured at a later stage by an appropriate amendment. Material facts mean, the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition. Material facts and material particulars certainly connote two different things. Material facts are those facts, which constitute the cause of action. In the instant case, the election petition lacks material facts.
Para-44 There is no dispute as regards to the contention for declaring the election to be void under the grounds mentioned under [SECTION], if the election of the returned candidate was materially effected based on the material facts averred in the election petition. Wherever the material facts are not furnished, the Apex Court in catena of decisions held that the relevant paras of the election petition are liable to be struck off for want of proper cause of action.
d) In [ENTITY] case (4 supra) The Apex Court explained the terms material facts and cause of action thus:
Para-22 [SECTION] of [ACT] that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well-settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the [ACT]. The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.
e) In [ENTITY] case (6 supra) it was observed thus:
Para-37 The phrase 'material facts' as used in [SECTION] of the Act or [SECTION] of the [ACT] has not been defined in the Act or the [ACT]. In our opinion all specific and primary facts which are required to be proved by a party for the relief claimed are material facts. It is settled legal position that all material facts must be pleaded by the party on which the relief is founded. Its object and purpose is to enable the contesting party to know the case which it has to meet. An election petition can be summarily dismissed if it does not furnish the material facts to give rise to a cause of action. However, what are the material facts always depend upon the facts of each case and no rule of universal application is possible to be laid down in this regard.
15) So, on a compendious study of above precedential jurisprudence we will understand:
(i) The phrase material facts employed in [SECTION] of [ACT] not been defined and its meaning is a contextual one in a given election petition.
(ii) Material facts or facta probanda are those basic, elementary and prime facts which the election petitioner shall plead and if traversed prove for the Court to afford a decree.
(iii) Whereas material particulars or facta probantia are the particulars in the form of evidence further vivify, refine and make more clear the material facts.
(iv) Material facts are the entire bundle of facts which constitute a complete cause of action for the petitioner and total defence for the respondent.
Thus, it has now to be seen whether 1st respondent/election petitioner has pleaded the required material facts and whether they constitute a total cause of action to proceed with the trial in the point infra.
16) POINT NO.2: I have carefully scrutinized the contents of the election petition to know whether the 1st respondent/election petitioner had pleaded all the relevant material facts and they constitute cause of action to proceed with trial. It is observed that in his pleadings he has reproduced the five objections taken by him before the 8th respondent/Returning Officer at the time of scrutiny of nomination and reiterated that the Returning Officer has rejected his objections contrary to the Conduct of the Election Rules and guiding principles. He has given the table showing the votes polled to each contesting candidate and pleaded that he stood second highest in the tally. As rightly contended by the petitioner except fulminating that the Returning Officer has unduly rejected his objections, the 1st respondent has not furnished the material facts in his pleadings as to how in his perception and in the eye of law, the order of the Returning Officer is impugnable. A mere scourging of the order of the Returning Officer howsoever fiercely, it must be said, will not constitute material facts and give rise to cause of action unless the pleadings are balanced with the factual and legal reasons projecting where and how the impugned order suffered perversity and illegality. In the instant case, in my considered view, unfortunately the pleadings are totally bereft of such material facts. On completion of reading of pleadings one fails to understand how the order of the Returning Officer was at fault.
a) Paras-2, 9 to 11 are specifically attacked by the petitioner on the ground that pleadings in those paras are not supported by any material facts and hence they are liable to be struck out. In para-2 the 1st respondent narrated the five objections taken by him. In para-9 he expressed his grievance that 8th respondent has not considered his objection and his order is contrary to the judgment of the Apex Court in [ENTITY] case (10 supra). He further mentioned in that para that as per the aforesaid judgment, filing of an affidavit with blank particulars will render the affidavit nugatory. In para-10 he pleaded that in the light of the Apex Courts Judgement 8th respondent ought to have rejected the improper nomination of the instant petitioner. He also pleaded that instant petitioner misrepresented the Election Commission as well as 8th respondent as he has not added Rs.21 lakhs to the gross total of his assets and showed the gross total as Rs.2,79,67,680/- instead of Rs.3,00,67,680/-. Whereas in para-11 under the caption Grounds 1st respondent reiterated that 8th respondent has made improper acceptance of nomination. The cumulative effect of paras-2, 9 to 11 is nothing but again lampooning the order of 8th respondent as erroneous without demonstrating as to how his order was factually and legally perverse and wrong. Even the mentioning of the judgment in [ENTITY] case (10 supra) and the allegation that the petitioner suppressed Rs.21 lakhs from the total assets, we will presently see, will not constitute any material facts so as to strengthen the allegations in paras-2, 9 to 11.
b) The Apex Court in [PRECEDENT] after referring its various decisions has held that the Court in its powers under [SECTION] [ACT] can strike off unnecessary, scandalous, frivolous or vexatious pleadings which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It observed thus:
The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under [SECTION] of the [ACT] and to reject the election petition under [SECTION] of the code at the preliminary stage even though no written statement had been filed by the respondent.On a combined reading of [SECTION], [SECTION], [SECTION] and [SECTION] of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under [SECTION], as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. (Emphasis supplied) If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under [SECTION]. (Emphasis supplied) Therefore, the pleadings in paras-2, 9 to 11 being frivolous and vexatious and not containing any material facts and cause of action are liable to be struck off.
This point is thus held against respondent No.1.
17) POINT No.3: It is seen in Point No.2 that the election petition is woefully silent about the material facts constituting cause of action. It may be noted, though not in his pleadings in election petition, but during the course of enquiry of the two petitions 1st respondent advanced arguments to show how the order of the 8th respondent was factually and legally incorrect. Therefore, it is apposite to discuss his arguments.
18) With regard to objection Nos.1 and 3 which are alike, the contention of the 1st respondent is that the petitioner has not signed at the bottom of each and every page in the affidavit in Form No.26 in violation of [SECTION] of [ACT] but signed only in the last page of the affidavit. The reply of Sri [ENTITY], learned Senior Counsel is that [ACT] and Circular Orders issued by the High Court are intended to govern Subordinate Civil Courts and not the election procedure. Referring the Hand book for Returning Officer-2014, he would contend that as per [SECTION] candidate has to file nomination paper along with an affidavit in [SECTION] thereon which he has to sign on the last page but not on every page and the said rule is scrupulously complied with by the petitioner.
a) A perusal of the material papers filed along with election petition would show that [ENTITY] filed two sets of nominations along with two affidavits in [SECTION] and admittedly, he signed only on the last page of the affidavit at the place of verification in both sets.
When the 1st respondent took objection before the 8th respondent he held in his order [CASE NUMBER] dt.21.04.2014 that as per [SECTION] the candidate has to sign on the last page of the affidavit and accordingly negatived his contention.
b) [SECTION] of [ACT] reads thus:
35. Form:- Every affidavit shall be drawn up in the first person and divided into paragraphs numbered consecutively and each paragraph, as nearly as may be, shall be confined to a distinct portion of the subject.
Every affidavit shall be written or typed or printed and stitched book wise. The deponent shall sign at the foot of each page of the affidavit. Note:- For forms of Oath and affirmation refer the Scheduled to the [ACT].
Thus, as per the above rule the deponent shall sign at the foot of each page of the affidavit. However, as rightly contended by Sri [ENTITY] the said rule postulates the form of affidavit to be filed in civil proceedings in Subordinate Courts. The preamble of the [ACT] reads as follows:
[CASE NUMBER]SO/69:- Whereas it is expedient to amend consolidate and bring up to date the civil rules of Practice and Circular Orders, 1905, and to incorporate therein the circular orders and administrative instructions issued from time to time for the guidance of all the subordinate Civil Courts in the State of Andhra Pradesh except the Court of Small Causes the following rules and circular orders are issued under the authority of the High Court.
In exercise of the powers conferred by [SECTION] of the [ACT] and [SECTION] of the [ACT] and with the previous approval of the Governor of Andhra Pradesh the High Court of Andhra Pradesh hereby makes the following Rules and Circular orders for the guidance of Subordinate Civil Courts in the State of Andhra Pradesh, except the Court of small Causes.
Therefore, it is evident that [SECTION] is applicable to the affidavits filed in the Subordinate Courts. By no stretch of imagination it can be claimed that said Rule applies to the form of affidavits filed before other authorities. The learned counsel for petitioner produced Hand Book for Returning Officer- 2014 issued by Election Commission of India wherein the form of affidavit to be submitted by the contesting candidates is mentioned. [SECTION] reads thus:
5.20.1: Every candidate makes a declaration in his nomination paper that he is qualified and not disqualified for being chosen at the election.
Among other disqualifications mentioned in [SECTION] and [SECTION] of the [ACT] and [SECTION] of the [ACT], [SECTION] of the said Act lays down the disqualification on conviction for offences specified therein. Along with the nomination paper, every candidate is required to file an affidavit in [SECTION] (Annexure 11-C, 12).
The affidavit should be sworn before a Magistrate of the First Class or before a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned, on the last page of the Affidavit. The duly sworn affidavits should be on stamp paper of such denomination as prescribed under the state law of the state concerned ([CASE NUMBER] dt.01.10.2011 and [CASE NUMBER] dt.24.08.2012.
c) Thus, the aforesaid rule mandates that the candidate should sign on the last page of the affidavit. As such, the contention of the 1st respondent cannot be accepted.
19) Then, objection No.2(a) of the 1st respondent is that in Sl.No.2 of item No.4, the space under the heading Total income shown in IT returns relating to wife of petitioner was left blank in one affidavit but the Returning Officer having observed that the said space was filled as not applicable in another affidavit, erroneously negatived his objection. His contention is that a candidate is not entitled to file two affidavits in [SECTION] in view of Notification No.3/4/12/SDR dt.24.08.2012 issued by Election Commission of India. He further contended that non-disclosure of crucial information relating to assets of spouse render the nomination invalid as per [ENTITY] case (8 supra). The reply of Sri [ENTITY] is that a candidate is entitled to file multiple sets of nominations and the notification cited by the 1st respondent did not put any restriction to that effect and though the petitioner, in one set left the concerned space as blank but in another set filled the relevant space as not applicable and therefore the Returning Officer has rightly accepted the said affidavit and approved his nomination.
a) On careful scrutiny of the record, I find no force in the contention of the 1st respondent. Regarding the filing of nominations, as per [SECTION] of [ACT] a candidate is entitled to file four sets of nomination papers for election in one constituency. In [PRECEDENT] this High Court held that nomination paper under [SECTION] of [ACT] means a valid nomination. Therefore, a candidate is entitled to file four sets of valid nomination papers. It must then be noted that [SECTION] affidavit is a part of nomination paper. In the instant case, it appears, the petitioner has filed two sets of nomination papers along with two [SECTION] affidavits. Therefore, at the first blush there is no substance in the contention that the petitioner is not entitled to file more than one affidavit.
b) Then coming to instructions issued by Election Commission of India under Ref.No.3/4/2012/SDR dt.24.08.2012, a perusal of copy of the said notification filed by the 1st respondent would show that previously the candidates for the elections to Parliament and the State Legislatures were required to file two affidavitsone in [SECTION] appended to [ACT] and another affidavit in the Form prescribed by the Election Commission. In those affidavits, the candidates were required to declare the information about their criminal background if any, assets, liabilities and educational qualifications etc. Later, it appears on the proposal moved by the Commission for amalgamating the two affidavits into one format, the Government has amended [SECTION] so as to include in it all the information that was sought in the two separate affidavits. The Ministry of Law and Justice have notified the revised format of [SECTION] in the Gazette of India on 01.08.2012. In that back ground, the Election Commission of India in the aforesaid notification dt.24.08.2012 made it clear that the candidate shall hereafter file only one affidavit in the revised [SECTION] which was notified on 01.08.2012. So, the said notification of Election Commission of India made it clear that all the candidates are hereafter required to file only one revised affidavit under [SECTION] instead of two affidavits which they used to do hitherto.
c) There is no dispute with regard to above notification. In fact, the petitioner has filed affidavit in revised [SECTION] in each set of nomination. The above notification only tells that candidate shall file one affidavit under revised [SECTION] in stead of two affidavits. However, the said notification did not put an embargo on the candidates to file multiple nomination papers contrary to [SECTION] of [ACT]. Therefore, the contention of 1st respondent in this regard cannot be countenanced. Consequently the decision in [ENTITY] case (8 supra) can be distinguished on facts as in the instant case there is no suppression of any assets.
20) Then, objection No.2(b) and objection No.4 which are identical are concerned, it is the contention of 1st respondent that in item No.6 the petitioner did not strike out those words whichever are not applicable to his case and thereby he suppressed crucial facts relating to his involvement in offences if any.
a) Item No.6 of the affidavit relates to candidates involvement in the offences specified in [SECTION] of [ACT]. The opening clause of item No.6 reads I have been / have not been convicted of an offence(s) and the candidate has to strike out the words which are not applicable to him. If the candidate is convicted and punished as aforesaid, he has to give particulars as mentioned in (a)(b)(c)(d) columns. In the instant case, the petitioner has not deleted the words which are not applicable to him from among I have been/ have not been convicted. However, in the columns against (a)(b)(c)(d) he clearly mentioned as not applicable. In substance he made it clear to the voters that he was not convicted and sentenced for the offences covered by [SECTION]. So, for not mere deleting the suitable words among I have been/have not been convicted, it cannot be said that he suppressed any material facts showing his involvement in the offences covered by item No.6. Therefore, the 8th respondent rightly rejected his objection.
b) [ENTITY] case (9 supra) relied upon by the 1st respondent can be distinguished on facts because in that case the election of the appellant was declared as null and void as he had not disclosed the details of 8 criminal cases pending against him. Such is not the case here.
21) Then, with regard to objection No.2(c) the contention of 1st respondent is that in item No.8 III of Part-B of the affidavit under the heading Approximate current market price petitioner left the concerned space as blank. Per contra, the reply of Sri [ENTITY] is that phrase Approximate current market price under Item 8 III is a heading for the items (a) and (b) and since the said phrase is only a heading, the space against it cannot be filled up. However, the petitioner has filled the particulars against columns (a) and (b) and therefore there is no fault of the petitioner.
a) On perusal, I find no force in the objection of the 1st respondent. The phrase Approximate current market price tagged to Item No.8 III is a heading which contains two sub-heads i.e (a) hisacquired assets and (b) inherited assets. A candidate is required to give particulars for (a) and (b) and not for the heading. The petitioner has provided the required information for (a) and (b) and left the space against the main heading. Therefore, 8th respondent has rightly negatived the said objection. [ENTITY] case (10 supra) cited by the 1st respondent will not improve his case. It was held in that case the candidates must take the minimum effort to explicitly remark as nil or not applicable or not known in the columns and not to leave the particulars blank and such leaving will violate the fundamental right of the citizen to have the necessary information. The instant case is not of that kind.
22) The 5th objection is to the effect that proxy of the instant petitioner viz. [ENTITY] did not put his signatures on each and every page of the [SECTION] and later he has withdrawn his nomination. It must be said that this is a frivolous objection and totally unconnected to the petitioner. The petitioner has nothing to do with the nomination of [ENTITY] and therefore defects if any, in his affidavit cannot be counted against the petitioner.
23) Thus, none of the objections raised by the 1st respondent before the 8th respondent and repeated in his election petition merit consideration. Apart from the above, the 1st respondent in para-10 of the election petition has taken a new ground to the effect that the petitioner has concealed Rs.21 lakhs worth of movable assets of his wife and showed his gross total value as Rs.2,79,67,680/- instead of Rs.3,00,67,680/-. It must be held that this objection also does not hold water. In Item No.VII the petitioner has shown item wise movable assets of his [ENTITY] and showed their gross total value as Rs.2,79,67,680/-. However, the total value comes to Rs.3,00,67,680/-. It is only a mistake in totalling the items of movable properties. Since there is no concealment of any item, the clerical error in totalling cannot be taken as a felony.
24) Thus, on a conspectus, the election petition is liable to be dismissed in limini without necessity of conducting trial for two reasonsfirstly, the petition is bereft of material facts and cause of action and secondly, the objections raised before the 8th respondent and repeated in the election petition do not merit consideration, which can be and in fact, have been, decided without necessity of conducting trial. It is true that in [ENTITY] case (5 supra) cited by the 1st respondent the Apex Court held that when the facts disclose material facts and cause of action though not complete cause of action, the election petition need not be dismissed at the threshold. However, in the instant case, as already observed supra, the election petition totally lacks material facts except repetition of the objections raised before the 8th respondent. Therefore, election petition merits dismissal.
a) As already states supra, the 1st respondent has raised some new objections with regard to alleged suppression of assets of the petitioner and his wife in his counter for the first time but not pressed the said objection. Hence, the said objection is not taken into consideration. So, at the outset, the two petitions filed by the petitioner deserve to be allowed and consequently the election petition is liable to be dismissed in limini.
This point is answered accordingly.
25) POINT No.4: In the result;
a) [CASE NUMBER] is allowed and Paras-2, 9 to 11 in the Election Petition are ordered to be strike out for being frivolous and vexatious and not containing material facts and cause of action therein.
b) [CASE NUMBER] is allowed and [CASE NUMBER] is rejected in limini.
As a sequel, miscellaneous petitions pending if any, shall stand closed.
[ENTITY], J Date: 02.08.2016