Lalitesh Pati Tripathi vs Dr Vinod Kumar Bind

AFR
Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD
ELECTION PETITION No. - 5 of 2024
Lalitesh Pati Tripathi
.....Petitioner(s)
Versus
Dr Vinod Kumar Bind
.....Respondent(s)
Counsel for Petitioner(s) : Narendra Kumar Pandey, In Person,
Peeyush Kumar Shukla
Counsel for Respondent(s) : Jagannath Prasad, Shivendra Kumar
Singh, Indra Jit Singh, K.R. Singh
Court No. - 89
HON'BLE RAJ BEER SINGH, J.
Order on Civil Misc. Application No. 4 of 2024
1. This Civil Misc. Application under Order VII Rule 11 Code of Civil
Procedure has been filed on behalf of respondent / returned candidate Dr.
Vinod Kumar Bind seeking following prayer:
''It is therefore most respectfully prayed that the election petition be dismissed under
Order VII Rule 11 of the Code of Civil Procedure as it discloses no cause of action.''
th
2. For constitution of 18 Lok Sabha, election schedule was notified by
the Election Commission of India on 16.03.2024 and elections for Lok
Sabha were to be conducted in seven phases. In 78- Bhadohi (Uttar
Pradesh) Parliamentary constituency the nomination for contesting
election were to be submitted up-to 06.05.2024 and date of scrutiny of
nomination papers was 07.05.2024. The petitioner filed his nomination
paper on 04.05.2024 to contest election for Member of Parliament from
78 – Bhadohi Parliamentary Constituency and after scrutiny his
nomination papers were found valid. After date of withdrawal of the
nomination papers i.e. 09.05.2024, the Returning Officer has issued a list
of contesting candidates and there were total 10 candidates, whose

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2
nomination papers were found valid and they were allotted symbols. The
poll took place 25.05.2024, followed by counting of votes on 04.06.2024.
After counting, the Returning Officer declared that total 10,85,742 votes
were polled and as per final result sheet, petitioner Lalitesh Pati Tripathi
has got 4,15,910 votes and respondent / returned candidate Dr. Vinod
Kumar Bind got 4,59,982 votes and accordingly Dr. Vinod Kumar Bind
was declared elected as Member of Parliament from the aforesaid
constituency.
3. The petitioner has challenged the election of the returned candidate on
the following five grounds :-
A. Because the result of the election in so far as it concerned to
Returned Candidate namely Dr Vinod Kumar Bind, is materially
affected due to improper acceptance of his nomination paper as a
Member of Parliament from 78- Bhadohi Parliamentary
constituency of District Bhadohi, by the Returning Officer, 78-
Bhadohi Parliamentary constituency of District Bhadohi.
B. Because the election of the Returned Candidate Dr Vinod
Kumar Bind as a Member of Parliament from 78- Bhadohi
Parliamentary constituency of District Bhadohi, is illegal and
void as Returned Candidate was not qualified and was
disqualified under the provision of Constitution of India to contest
the election on the post of Member of Parliament from 78 –
Bhadohi Parliamentary constituency of District Bhadohi.
C. Because the election of the Returned Candidate Dr Vinod
Kumar Bind as a Member of Parliament from 78- Bhadohi
Parliamentary constituency of District Bhadohi, is illegal and
void due to improper rejection of nomination paper of Candidate
Zia-Ul-Haq and Lalti Devi.
D. Because the result of election, in so far as it concern the
Respondent, is materially affected by non-compliance of the

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3
provisions of Constitution of India or Representation of People
Act, 1971 or Conduct Rules, 1961 or Orders made therein, and
the orders issued by the Election Commission of India from time
to time in exercise of its powers conferred by the Constitution as
well as the instructions contained in the hand book of Returning
officers issued by the E.C.I. in exercising powers under Article
324 of the Constitution of India.
E. Because the respondent, and his agent or any person with his
consent committed the corrupt practice of bribery in the meaning
of section 123(1)(B)(a) with explanation of the R.P. Act, 1951.
4. The respondent / returned candidate filed aforesaid application under
Order VII Rule 11 CPC, alleging that election petition does not disclose
cause of action and the election petition is liable to be dismissed under
Order VII Rule 11 CPC. It was alleged that election petition is completely
bereft of material facts and that averments made in the election petition do
not amount to any ground for setting aside the election of the returned
candidate and petition does not raise any triable issue. The necessary
material facts and ingredients in respect of grounds and allegations have
not been stated in the election petition. The Election petition contains
indefinite, vague, general and misconceived allegations, which do not
amount to any material facts. There is no such material fact which may
indicate any material effect upon election of the returned candidate /
respondent. The pleadings in the election petition are frivolous, vexatious,
unnecessary, irrelevant and tend to prejudice, embrace and delay the fair
trial of election petition. The election petition purports to contain alleged
grounds of improper rejection of nomination papers of two candidates,
namely, Zia-Ul- Haq and Lalti Devi and improper acceptance of
nomination paper of the respondent as well as of corrupt practice of
bribery but there are no material facts to support any of the alleged
ground raised in the election petition. The petitioner has alleged that
respondent was disqualified for being chosen as a Member of Parliament

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4
under Tenth Schedule of the Constitution as he has not resigned from
membership of Nirbal Indian Shoshit Hamara Aam Dal party (hereinafter
referred as NISHAD Party) before contesting the parliamentary election
as a candidate of Bhartiya Janta Party (hereinafter referred as BJP) but
said allegation is wholly misconceived inasmuch as Tenth schedule of the
Constitution of India is not applicable in the present matter. Regarding
alleged improper rejection of the nomination papers of Zia-Ul- Haq and
Smt. Lalti Devi, the petitioner has not disclosed even the grounds of
rejection of their nomination papers and merely a vague allegation was
made that their nominations were rejected on flimsy grounds, which goes
to show that petitioner does not know as to on what ground nomination
papers of said Zia-Ul- Haq and Smt. Lalti Devi were rejected. Regarding
allegation of corrupt practice of bribery, it was alleged that there was
some undisclosed understanding or agreement between the President of
NISHAD Party and the State unit of BJP but there is no allegation against
the respondent at all and there is no allegation of consent of respondent in
regard to alleged corrupt practice. It was stated that petition is liable to be
dismissed under Order VII Rule 11 Civil Procedure Code (hereinafter
after referred as CPC).
5. The petitioner has filed reply / counter affidavit against the application
under Order VII Rule 11 CPC, alleging that the petitioner has filed
present election petition on the grounds, which come under purview of
Section 100 of Representation of the People Act 1951 (hereinafter
referred as R.P. Act) and pleadings of election petition are complete in all
respect and petitioner has supplied all material facts and particulars in
respect of the grounds mentioned in the election petition. The pleadings of
election petition disclose complete cause of action and that application
under Order VII Rule 11 CPC is misconceived and the same is filed with
intention to delay the fair trial. None of the averment / allegation made in
the election petition is frivolous, vexatious, unnecessary or irrelevant and
in fact pleadings of election petition are precise, definite and specific. The

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5
improper rejection of the nomination papers of candidate Zia-Ul- Haq and
Smt. Lalti Devi comes under the purview of Section 100(1)(c) of R.P.
Act. In respect of improper acceptance of nomination paper of the
respondent, the petition falls within the purview of Section 100(1)(d)(i) of
R.P. Act and similarly corrupt practice of bribery comes under purview of
Section 100 (1)(b) of R.P. Act read with Section 123(1)(B)(a) of R.P. Act.
It was further mentioned that material facts and particulars relating to
grounds A, B, C, D, E have been provided in para nos. 28 to 105 and para
nos. 1 to 26 of the election petition. The returned candidate / respondent
contested the parliamentary election as a candidate of BJP while he was a
sitting member of U.P. Legislative Assembly from NISHAD party from
Majhwan Assembly Constituency and thus provisions of Tenth Schedule
of Constitution are fully attracted and applicable and returned candidate
was not qualified and in fact disqualified to contest the parliamentary
election. The election petition constitutes a complete cause of action and
none of the paragraph of election petition is irrelevant, frivolous or
vexatious, rather in fact pleadings of the election petition are definite,
precise and disclosed complete cause of action. The application under
Order VII Rule 11 CPC was filed by the returned candidate /respondent to
delay the fair trial and the same is liable to be rejected.
6. Heard Sri K. R. Singh learned counsel for the respondent / returned
candidate and Sri N. K. Pandey learned counsel for the election petitioner
at length and perused the record.
7. Learned counsel for the respondent / returned candidate submitted that
the election petition does not contain any material fact to disclose a cause
of action. The ground of alleged disqualification of the respondent taken
by the petitioner to challenge the election of the respondent is
misconceived. It was submitted that Article 102 of the Constitution of
India is in two parts and there is difference between Article 102 (1) and
102 (2). Article 102(1) of the Constitution provides about disqualification
'for being chosen' and 'for being' both, whereas, Article 102 (2) provides

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disqualification for 'being' only and not for 'being chosen". Paragraph 2 of
Tenth Schedule provides about disqualification 'for being' a Member of
the House and it is not a disqualification 'for being chosen', meaning
thereby that under Article 102 (2) read with paragraph 2 of Tenth
Schedule, a sitting member of the House shall be disqualified 'for being'
or for continuing as a member of that House till the term of that house but
it is not a disqualification to contest a fresh election. A member of one
House can contest fresh election of another House either from the same
party or from different party. The allegation made by petitioner is totally
misconceived and it is not a sustainable ground under Section 100 of the
R.P. Act to challenge the election of the returned candidate.
8. It was further submitted that there are no material facts in regard to
alleged violation of provisions of para 13 of E.S. Order. There are no
material facts to support the ground 'A' regarding alleged improper
acceptance of nomination papers of the respondent. It was submitted that
to make out a ground under Section 100(1)(d)(i) or 100(1)(d)(iv) of R.P.
Act, it is necessary to plead material facts as to how the election has been
materially affected by the improper acceptance of any nomination, or by
any non-compliance with the provisions of the R.P. Act or of any Rules or
orders made under R.P. Act. There are no material facts to show as to
how the election of the respondent / returned candidate has been
materially affected on that ground. It was further submitted that facts
mentioned in reference to ground 'D' are quite vague. There are no
material facts to indicate there was any non-compliance of the provisions
of Constitution of India or of R.P. Act or any Rules or Orders and
similarly there are no material facts to show that election has been
materially affected by any non-compliance with the provisions of the R.P.
Act or of any Rules or Orders made under R.P. Act.
9. It was next submitted that so far the allegations regarding of improper
rejection of nomination papers of two candidates, namely, Zia-Ul- Haq
and Lalti Devi are concerned, the petitioner has not provided any such

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fact that on which ground their nomination papers were rejected and only
vague averments have been made that their nomination papers were
rejected on flimsy grounds. There are no such averments that aforesaid
candidates have sought any time which was refused by the Returning
Officer. There is no such fact the petitioner was present before the
Returning Officer when said Zia-Ul-Haq and Smt. Lalti Devi have filed
their nomination papers or that said Zia-Ul-Haq and Lalti Devi have told
the petitioner about taking oath or affirmation or that their nomination
papers were valid in all respects. Said candidates have never made any
complaint to the Returning Officer nor they have filed any election
petition. It was submitted that the petition lacks material facts and thus, no
cause of action is made out on that ground.
10. Learned counsel for respondent further submitted that there is no basis
at all to support the allegation that there was any undisclosed
understanding or agreement between the President of NISHAD Party and
the State unit of BJP so as to bring the petition within the purview of
Section 123(1)(B)(a) of R.P. Act. There is no allegation of consent of
respondent regarding alleged corrupt practice. It was submitted that the
allegations regarding corrupt practice are speculative and based on
surmises and that there are no material facts in support of bald allegations
as required under section 83 of the R.P. Act. It was submitted that no
triable issue is made on ground of alleged corrupt practice.
11. Referring to facts of the matter, it was submitted that the grounds
raised in the election petition do not disclose any triable issue or cause of
action and thus, the election petition is liable to be dismissed under Order
VII rule 11 CPC. In support of his contentions, learned counsel for the
respondent has placed reliance upon following case laws :-
1. Jyoti Basu Vs. Debi Ghosal AIR 1982 SC 983
2. U. S. Sasidharan Vs. K Karunakaran AIR 1990 SC 924
3. Jitendra Bahadur Vs. Krishna Behari AIR 1970 SC 276

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4. Udhav Singh Vs. Madhav Rao Scindia AIR 1976 SC 744
5. Ram Singh Vs. Kazi Mohiuddin AIR 1988 All 210
6. Hari Shankar Jain Vs. Sonia Gandhi 2001 Lawsuit (SC) 1215
7. Shrimanth Balsaheb Patil Vs. Hon'ble Speaker Karnatak Legislative
Assembly (2020) 2 SCC 595
8. G.S. Iqbal Vs. K.M. Khadar (2009) 11 SCC 398
9. Sri K.M. Mune Gowda Vs. State of Karnataka 2023 (0) Supreme (Kar)
559
10. Pashupati Nath Singh Vs. Harihar Prasad Singh AIR 1968 SC 1064
11. Khaj Khanavar Khadirkhan Hussain Khan Vs. Siddavanaballi Nija
Lingappa AIR 1969 SC 1034
12. Ms. Krishna Mohini Vs. Mohinder Nath Sofat AIR 2000 SC 317
13. J.H. Patel Vs. Subhan Khan (1996) 5 SCC 312
14. Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253
15. Ram Autar Shashtri Vs. Khurshied Alam Khan AIR 1987 All 279
16. Ramakant Mayekar Vs. Celine D'Silva (1996) 1 SCC 399
17. Chandrakanta Goyal Vs. Sohan Singh Jodh Singh Kohli (1996) 1 SCC
378
18. Subhash Desai Vs. Sharad J. Rao 1994 Supp. (2) SCC 446
12. Learned counsel for the petitioner has opposed the application and
submitted that the election petition contains concise statement of material
facts in support of all five grounds mentioned in the election petition.
Referring to grounds 'A' and 'D', it was submitted that the returned
candidate / respondent was a member of NISHAD party and a sitting
member of Legislative Assembly of Uttar Pradesh from NISHAD party
and there is nothing to show that he has resigned from membership of
NISHAD party or joined BJP but in his nomination form and in his
affidavit in Form – 26 submitted for contesting election from aforesaid
parliamentary constituency, he has shown himself as a candidate of BJP
and thus, he has made false declaration in his nomination form and in
affidavit in Form – 26 about status of the political party, which is in
contravention of para 13 of Election Symbol (Reservation and Allotment)
Order, 1968 (hereinafter referred as E. S. Order) and thus his nomination

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paper was not complete in terms of Section 33 of R.P. Act and Returning
Officer improperly accepted his nomination paper. On that ground
petition falls within the purview of Section 100(1)(d)(i) of R.P. Act.
Similarly for non-compliance of provisions of Section 33, 33 A of R.P.
Act and para 13 of E. S. Order 1968, the petition falls within the ambit of
Section 100(1)(d)(iv) of R.P. Act. It was submitted that the respondent /
returned candidate cannot be a member of two political parties i.e. BJP
and NISHAD party simultaneously, which is also evident from
constitution / bye-laws of BJP and NISHAD Party. It was submitted that
at the time of scrutiny of nomination papers, the petitioner has raised oral
as well as written objection but neither any receipt of same was provided
by the Returning Officer nor the same were considered as per law and
Rules. The result of the election, insofar as the respondent / returned
candidate is concerned, was materially affected by improper acceptance
of his nomination paper and by alleged non-compliance of the said
provisions. It was argued that so far ground 'A' and 'D' are concerned,
election petition disclose complete cause of action and in this connection
relevant pleadings have been made in paragraph no. 61 to 83, 87, 90, 97,
101 of the election petition.
13. In regard to ground 'B', it was argued by learned counsel for the
petitioner that election petition falls within the purview of Section
100(1)(a) of R.P. Act. The respondent / returned candidate Dr. Vinod
Kumar Bind was a Member of Legislative Assembly of Uttar Pradesh
from NISHAD party and thus, he was member of NISHAD Party. It was
stated that while continuing as an ordinary member of NISHAD Party as
well as Member of U.P. Legislative Assembly, the respondent / returned
candidate filed his nomination paper for Member of Parliament from
above referred constituency as a candidate set up by BJP, whereas there is
nothing to show that he has ever resigned from the membership of
NISHAD party. He also did not resign from membership of U.P.
Legislative Assembly and he has contested the election from above

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referred constituency as a candidate of BJP, whereas, he was not a
primary or ordinary member of the BJP. It was further submitted that the
aforesaid facts show that the respondent / returned candidate Dr. Vinod
Kumar Bind has voluntarily given up his membership of NISHAD Party
and thereby he was disqualified from contesting the election for Member
of Parliament from aforesaid constituency. Returned candidate Dr. Vinod
Kumar Bind has tendered his resignation from membership of the
Legislative Assembly on 14.06.2024. It was submitted that in view of
provisions of Article 102(2) R.P. Act read with para 2(1)(a) of Tenth
Schedule of the Constitution of India, the respondent / returned candidate
Dr. Vinod Kumar Bind was not qualified and he was disqualified for
contesting election for Member of Parliament and his nomination papers
ought to have been rejected by the Returning Officer but he has illegally
and arbitrarily accepted his nomination papers. It was submitted that the
election of the respondent / Returned Candidate Dr Vinod Kumar Bind as
a Member of Parliament from aforesaid constituency is illegal and void as
he was not qualified and was disqualified to contest the election for
Member of Parliament and thus in respect of ground 'B' all material facts
have been provided in the election petition, which give rise a cause of
action.
14. Referring to ground 'C', it was argued that nomination papers of
candidates, namely, Zia-Ul-Haq and Lalti Devi were rejected improperly.
Said candidates Zia-Ul-Haq and Smt. Lalti Devi were duly qualified and
eligible to contest the election and after completing all formalities of valid
nomination, they filed their nomination papers before the Returning
Officer. They have appended the affidavit in form- 26, wherein they have
disclosed their criminal and civil antecedents and they were subscribed by
oath / affirmation before the competent authority. The Returning Officer
after receiving their nomination papers was fully satisfied with the entries
made in the nomination papers and no check-list was issued to them as
their nomination papers were complete in all respect. None of the

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candidate raised any objection against nomination papers of Zia-Ul-Haq
and Smt Lalti Devi during the scrutiny of the nomination papers on
07.05.2024 but the Returning Officer illegally and arbitrarily and in a pre-
planned mechanism rejected their nomination papers on flimsy ground. It
was done with purpose so that only one balloting unit of EVM can be
used. The Returning Officer has adopted dual standard in scrutinizing the
nomination papers and that if any defect was found by the Returning
Officer at the time of scrutiny of their nomination papers, then in view of
provision of Section 36(5) of R.P. Act an opportunity to rebut such
objection should be have been provided to them but no such opportunity
was provided to them. It was submitted that the Returning Officer has not
only rejected the nomination papers of candidates Zia-Ul-Haq and Lalti
Devi but also rejected nomination papers of several other candidates on
flimsy grounds. It was argued that the election of returned candidate Dr
Vinod Kumar Bind as a Member of Parliament from aforesaid
constituency is illegal and void due to improper rejection of nomination
paper of candidates Zia-Ul-Haq and Lalti Devi.
15. So far as ground 'E', is concerned, it was submitted by learned counsel
for the petitioner that as per Section 123(1)(B)(a) of R.P. Act, bribery is
receipt or agreement to receive any gratification, whether as motive or
reward by a person for standing or not standing as, or for withdrawing or
not withdrawing from being a candidate. At the time of the Notification of
parliamentary election, the respondent / returned candidate was a member
of Legislative Assembly (UP) from NISHAD party and that the President
of NISHAD party has entered into an understanding or agreement with
the State unit of BJP that the respondent be set up as a candidate of BJP
and thus, his candidature was a consequence of the said bargaining
between President of NISHAD party and State unit of BJP. It was also
bargained that the President of NISHAD party will not make any
complaint to the Speaker under Tenth Schedule against the membership
of the respondent in Legislative Assembly. These allegations constitute

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corrupt practice within the meaning of section 123(1)(B)(a) of R. P. Act
and aforesaid facts provide all particulars in terms of section 83(1)(b) of
R.P. Act. Said undisclosed understanding or arrangement between the
said political parties is against the spirit of the Tenth Schedule of the
Constitution of India and the same amounts to commission of corrupt
practice of bribery by the returned candidate within the purview of
Section 123(1)(B)(a) of R.P. Act. It was stated that it is a case of
commission of corrupt practice by the returned candidate himself and thus
it was not necessary to plead and prove element of consent. Whether the
said charge is proved or not, that has to be considered in the trial of the
election petition. The election petitioner has provided all material facts as
required under Section 83(1)(a) of R.P. Act in para Nos. 91 to 103 in the
election petition. It was submitted that election of the returned candidate
is vitiated due to aforesaid corrupt practice and thus liable to be declared
null and void.
16. It was submitted that petition disclose cause of action in respect of all
the grounds and thus, the application under Order VII Rule 11 CPC is
liable to be dismissed. In support of his contentions, learned counsel for
the petitioner has placed reliance upon following case laws :-
1. Syed Dastagir Vs. T.R. Gopalakrishna Setty 1999 AIR SCW 2959
2. D. Ramachandran Vs. R. V. Janakiraman and others AIR 1999
SUPREME COURT 1128
3. Bhim Rao Baswanth Rao Patil Vs. K. Madan Mohan Rao and Ors. AIR
2023 SUPREME COURT 3574
4. Jay Veer Singh VS. Hari Om Yadav (Election Petition No. 4 of 2017),
decided on 10.11.2021.
5. Kanhiya Lal Omar Vs. R.K. Trivedi and Others AIR 1986 SUPREME
COURT 111
6. Ram Chandra Prasad Singh Vs. Sharad Yadav AIR 2020 SUPREME
COURT (Civil) 2077
7. Rajendra Singh Rana & Ors. Vs. Swami Prasad Maurya & Ors. AIR
2007 SUPREME COURT 1305
8. Ravi S. Naik Vs. Union of India and others WITH Sanjay Bandekar and
another Vs. Union of India and others AIR 1994 SUPREME COURT

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1558.
9. Raj Narain Vs Smt Indira Nehru Gandhi (1972) 3 Supreme Court Cases
850
17. I have considered rival submissions and perused record.
18. Before proceeding further it would be apt to refer Section 83 of R.P.
Act of 1951, which reads 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."
19. Section 83 R.P. Act mandates that an election petition must contain a
concise statement of material facts so that the elected candidate must get
adequate notice of what is alleged against him. Hon'ble Apex Court in the
case of (1999) 3 SCC 737, after
V.S. Achuthanandan Vs P. J. Francis
referring to various earlier pronouncements including case of Balwan
Singh Vs Lakshmi Narain AIR 1960 SC 770, Samant N. Balkrishna Vs
George Fernandez [(1969) 3 SCC 238], Virendra Saklecha Vs
Jagjiwan[(1972) 1 SCC 826 and Gajanan Krishnaji Bapat Vs Dattaji
Raghobaji Meghe [(1995) 5 SCC 347] and a host of other authorities, held
that while failure to plead "material facts" is fatal to the election petition
and no amendment of the pleading is permissible to introduce such
material facts after the time-limit prescribed for filing the election
petition, the absence of "material particulars" can be cured at a later stage
by an appropriate amendment. Material facts are such primary facts which
must be proved at the trial by a party to establish existence of a cause of
action. Whether in an election petition a particular fact is a material fact

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or not, and as such, required to be pleaded is a question which depends on
the nature of the charge levelled, the ground relied upon, and in the light
of the special circumstances of the case.
20. Dealing with the issue of requirement of material facts vis–a-vis the
provisions of Order VII Rule 11 CPC, Hon'ble Apex Court in case of D.
(supra) , held as under :-
Ramachandran
"10. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where
it does not disclose a cause of action. There is no question of striking out any portion of
the pleading under this rule. The application filed by the first respondent in O.A. No.
36/97 is on the footing that the averments in the election petition did not contain the
material facts giving rise to a triable issue or disclosing a cause of action. Laying stress
upon the provisions of Order VII, Rule 11 (a), learned senior counsel for the first
respondent took us through the entire election petition and submitted that the averments
therein do not disclose a cause of action. On a reading of the petition, we do not find it
possible to agree with him. The election petition as such does disclose a cause of action
which if unrebutted could void the election and the provisions of O.VII R.11(a) CPC can
not therefore be invoked in this case. There is no merit in the contention that some of the
allegations are bereft of material facts and as such do not disclose a cause of action. It is
elementary that under O.VII R.11 (a) CPC, the Court can not dissect the pleading into
several parts and consider whether each one of them discloses a cause of action. Under
the rule, there can not be a partial rejection of the plaint or petition. See Roop Lal Sathi
Versus Nachhattar Singh Gill (1982) 3 S.C.C. 487. We are satisfied that the election
petition in this case could not have been rejected in limine without a trial."
21. In case of (supra), in paragraph
Bhim Rao Baswanth Rao Patil
No.26, the Hon'ble Apex Court held as under :-
"26. A plain look at the election petition reveals that apart from allegations pertaining to
non-disclosure of criminal cases pending against the appellant, or cases where he was
convicted, other averments and allegations have been made regarding non-compliance
with stipulations regarding information dissemination and the manner of dissemination
through publication in newspapers, the font size, the concerned newspapers' reach
amongst the populace, etc. The alleged non- compliance with statutory and Election
Commission mandated regulations, and their legal effect, cannot be examined in what are
essentially summary proceedings under Order VII Rul e 11, CPC or even under Order XII
Rule 6, CPC. Even if the allegations regarding non-disclosure of cases where the appellant
has been arrayed as an accused, are ultimately true, the effect of such allegations (in the
context of provisions of law and the non-disclosure of all other particulars mandated by the
Election Symbols orders) has to be considered after a full trial. The admission of certain
facts (and not all) by the election petitioner cannot be sufficient for the court to reject the
petition, wholly. Even in respect of the undeniable nature of the judicial record, the effect of
its content, is wholly inadequate to draw a decree in part. This court has also ruled that the
truth or otherwise of anything is ordinarily a matter of evidence, in a full-blown trial. ''
22. In case of Jay Veer Singh (supra), this Court held at the stage of
consideration of a prayer to reject the plaint / election petition under

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Order VII Rule 11 CPC, it is well settled that the correctness of the
allegations is not to be tested on the basis of material produced by the
defendant/ respondent. At this stage, the averments made in the plaint or
the petition, as the case may be, are alone to be considered as a whole to
find out whether they disclose a cause of action to sustain the prayer
made. In case of Jitendra Bahadur Singh (supra) , it was observed that
the material facts disclosed by the petitioner must offered an adequate
basis for allegations made. It is not permissible to cull out a sentence or a
passage to read it out of context, in isolation. It is the substance and not
merely the form that has to be looked into, the pleadings has to be
construed as it stands without addition or subtraction of words or change
of its apparent grammatical sense. The intention of parties concerned is to
be gathered primarily from tenor and terms of pleadings taken as a whole.
It was further observed that all the primary facts which must be proved at
the trial by a party to establish the existence of a cause of action or his
defence are material facts. The omission of a single material fact would
lead to an incomplete cause of action and that an election petition without
the material facts relating to a corrupt practice is not an election petition
at all. In case of (supra) the law has been enunciated that all
Udhav Singh
the primary facts which must be proved by a party to establish a cause of
action or his defence are material facts. It was observed that all those facts
which are essential to clothe the petitioner with a complete cause of
action, are 'material facts' which must be pleaded, and failure to plead
even a single material fact amounts to disobedience of the mandate of
Section 83(1)(a). 'Particulars', on the other hand, are 'the details of the
case set up by the party'. 'Material particulars' within the contemplation of
clause (b) of Section 83(1) R.P. Act would therefore mean all the details
which are necessary to amplify, refine and embellish the material facts
already pleaded in the petition in compliance with the requirements of
clause (a). 'Particulars' serve the purpose of finishing touches to the basic
contours of a picture already drawn, to make it full, more detailed and

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16
more informative. Whenever there is an allegation of corrupt practice,
election petition shall contain a concise statement as to the material facts
on which petitioner relied and also must set forth full particulars of the
corrupt practice alleged by the petitioner. In case of
Syed Dastagir
(supra) , it was observed that while construing a plea in the pleadings,
Courts must keep in mind that a plea is not an expression of art and
science but an expression through words to place fact and law of one's
case for a relief. Such an expression may be pointed, precise, some times
vague, but still could be gathered what he wants to convey through only
by reading the whole pleading, depends on the person drafting a plea. In
India most of the pleas are drafted by counsels hence difference of pleas
which inevitably differs from one to other. Thus, to gather true spirit
behind a plea it should be read as a whole. The conspectus of the above
discussion is that for maintaining an Election Petition and for taking it to
the stage of trial, it is necessary that there is strict compliance with the
provisions of Section 83(1)(a) of the R.P. Act. The concise statement of
material facts must constitute a complete cause of action.
23. It is thus clear that Section 83 R.P. Act lays down a mandatory
provision that an election petition shall contain a concise statement of
material facts and set forth full particulars. The pleadings are regulated by
Section 83 R.P. Act and it makes it obligatory on the election petitioner to
give the requisite facts, details and particulars of each corrupt practice
with exactitude. If the election petition fails to make out a ground under
Section 100 of the R.P. Act it must fail at the threshold. When there is
allegation of corrupt practice, election petition shall contain a concise
statement as to the material facts on which petitioner relied and also must
set forth full particulars of the corrupt practice alleged by the petitioner.
The pleading relating to corrupt practice have to be scrutinised in a strict
manner. Thus, Section 83 R. P. Act makes it obligatory for the election
petitioner to give requisite facts, details, and particulars of each corrupt
practice with exactitude. It is correct that the correctness of the allegations

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17
is not to be tested on the basis of material produced by the defendant/
respondent and at this stage the averments made in the petition are alone
to be considered as a whole to find out whether they disclose a cause of
action to sustain the prayer made, however the material facts disclosed by
the petitioner must offered an adequate basis for allegations made. It
would be pertinent to mention that right to contest election or to question
the election by means of an election petition is neither common law nor
fundamental right, instead it is a statutory right regulated by the statutory
provisions of the R.P. Act. There is no fundamental or common law right
in these matters. This position is settled by a catena of decisions of Apex
Court. In this regard reference may be made to case of N.P. Ponnuswami
V Returning Officer [(1952) 1 SCC 94: AIR 1952 SC 64, Jagan Nath V
Jaswant Singh [AIR 1954 SC 210, Jyoti Basu V Debi Ghosal (supra).
These decisions have settled the legal position that outside the statutory
provisions there is no right to dispute an election. The R.P. Act is a
complete and self-contained Code within which any rights claimed in
relation to an election or an election dispute must be found. The
provisions of the Civil Procedure Code are applicable to the extent as
permissible by Section 87 of the R.P. Act. The scheme of the R.P. Act
demonstrates that an election can be questioned under Section 80 on the
grounds as contained in Section 100 of the R.P. Act and the pleadings are
regulated by Section 83 R.P. Act. If the election petition fails to make out
a ground under Section 100 of the Act it must fail at the threshold.
Similarly if the allegations are vague and general and the particulars of
corrupt practice are not stated in the pleadings, the trial of the election
petition cannot proceed for want of cause of action.
24. At this stage it would be pertinent to refer relevant provisions of the
Constitution of India and the R. P. Act. Article 102 of the Constitution
reads as under:
102. Disqualifications for membership.—(1) A person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament—

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18
[(a) if he holds any office of profit under the Government of India or the Government of
any State, other than an office declared by Parliament by law not to disqualify its holder;]
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation.—For the purposes of this clause a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State by reason
only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of either House of Parliament if he
is so disqualified under the Tenth Schedule.
24-A. Para 2 of the Tenth Schedule of the Constitution of India reads as
under:
''2. Disqualification on ground of defection.-
(1) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to
any political party shall be disqualified for being a member of the House-
(a) if he has voluntarily gives up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by
the political party to which he belongs or by any person or authority authorized by it in
this behalf, without obtaining, in either case, the prior permission of such political party,
person or authority and such voting or abstention has not been condoned by such
political party, person or authority within fifteen days from the date of such voting or
abstention.
Explanation.- For the purposes of this sub-paragraph,-
(a) an elected member of a House shall be deemed to belong to the political party, if any,
by which he was set up as a candidate for election as such member;
(b) a nominated member of a House shall,-
(i) where he is a member of any political party on the date of his nomination as such
member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or,
as the case may be, first becomes a member before the expiry of six months from the date
on which he takes his seat after complying with the requirements of article 99 or, as the
case may be, article 188.''
24-B. Section 100 of R.P. Act provides 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—

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19
(a) that on the date of his election a returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat under the Constitution or this Act [or the
Government of Union Territories Act, 1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned candidate or his election
agent or by any other person with the consent of a returned candidate or his election
agent; or
(c) that any nomination has been improperly rejected; or
(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 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.
25. Coming to the facts of the matter, it may be seen that so far as ground
'B' is concerned, the case of the petitioner is that respondent / returned
candidate Dr. Vinod Kumar Bind was not qualified to contest election for
Member of Parliament. It was alleged that the respondent / returned
candidate was a member of NISHAD party and also a member of U.P.
Legislative Assembly from NISHAD party and he has filed his
nomination paper for member of Parliament from above referred
constituency as a candidate set up by the BJP and there is nothing to show
that he has ever resigned from the membership of NISHAD party. It is
further the case of the petitioner that conduct of the respondent/ returned
candidate Dr. Vinod Kumar Bind shows that he has voluntarily given up
his membership of NISHAD party and thus he was disqualified from
contesting the election of Member of Parliament in view of Article 102
read with Tenth Schedule of the Constitution of India. The provisions of
para 2 (1) of the Tenth schedule provide that a member of a House
belonging to any political party shall be disqualified for being a member
of the House if he has voluntarily gives up his membership of such
political party. In case of Ravi S. Naik (supra) , Hon'ble Apex Court has
considered provisions of Para no. 2(1)(a) of Tenth Schedule of
Constitution of India and observed that a person may voluntarily give up
his membership of a political party even though he has not tendered his

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20
resignation from the membership of that party. It was held that even in the
absence of formal resignation from the membership an inference can be
drawn from the conduct of member that he has voluntarily given up his
membership of political party to which he belongs. Referring to
Paragraph no.2 of Tenth Schedule, Hon'ble Apex Court has held as under:
''11.This appeal has been filed by Bandekar and Chopdekar who were elected to the Goa
Legislative Assembly under the ticket of MGP. They have been disqualified from
membership of the Assembly under order of the Speaker dated December 13, 1992 on the
ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the
judgment of the High Court it appears that disqualification on the ground of paragraph
2(1)(b) was not pressed on behalf of the contesting respondent and disqualification was
sought on the ground of paragraph 2(1)(a) only. The said paragraph provides for
disqualification of a member of a House belonging to a political party "if he has
voluntarily given up his membership of such political party". The words voluntarily given
up his membership" are not synonymous with "resignation and have a wider connotation.
A person may voluntarily give up his membership of a political party even though he has
not tendered his resignation from the membership of that party. Even in the absence of a
formal resignation from membership an inference can be drawn from the conduct of a
member that he has voluntarily given up his membership of the political party to which he
belongs "
26. In the present case it is not disputed that at the time of nomination for
election of Member of Parliament from the aforesaid constituency on
06.05.2024, the respondent/ returned candidate Dr. Vinod Kumar Bind
was a sitting member of Legislative Assembly of U.P. from NISHAD
Party, whereas he has filed his nomination paper as a candidate set up by
the BJP. There is nothing to show or suggest that he has resigned from the
membership of NISHAD Party and in fact he has resigned from the
membership of Legislative Assembly on 14.06.2024, after he was elected
as Member of Parliament. From provisions of Section 13 of E.S. Order
and above the discussed legal position, it is clear that where a candidate is
submitting his nomination paper as a candidate of a particular party, his
name must exists on the rolls of members of such political party. In other
words to contest the election as a candidate of a particular party, he must
be a member of such political party. There is nothing to show that the
returned candidate has resigned from membership of NISHAD party or
that his name existed on the rolls of the BJP. In view of these facts and
circumstances it appears that before filing his nomination paper for

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21
election of Member of Parliament from aforesaid constituency, the
respondent / returned candidate has voluntarily given up his membership
of NISHAD Party. From law laid down in case of Ravi S. Naik (supra), it
is clear that words 'voluntarily given his membership' are not synonymous
with resignation. It was held that even in the absence of a formal
resignation from membership an inference can be drawn from conduct of
a member that he has voluntarily given up his membership of the political
party to which he belongs. In view of above referred facts and conduct of
the returned candidate / respondent, it appears that he has voluntarily
given up his membership of NISHAD Party. As per para 2 of Tenth
Schedule, if a Member of Legislature has voluntarily gives up his
membership of his political party, he entails disqualification as mentioned
in Tenth Schedule. As per these provisions a member of a House
belonging to any political party shall be disqualified for being Member of
that House, if he has voluntarily given up his membership of such
political party. As per Article 102(2) of Constitution of India, a person
shall be disqualified for being a member of either House of Parliament if
he is so disqualified under the Tenth Schedule. Here it would be pertinent
to mention that Para 6th of Schedule Tenth of Constitution of India
provides that if any question arises as to whether a Member of a House
has become subject to disqualification under the Schedule, the question
shall be referred for the decision of the Chairman or as the case may be
the Speaker of such House for decision on such disqualification.
27. At this stage a question arises whether in such circumstances the
disqualification of a Member of Legislative Assembly would operate
from the time he has voluntarily given up membership of his political
party or from the date of decision taken by the Chairman / Speaker of the
House in that regard. In this connection in case of
G.S. Iqbal Vs. K.M.
Khather (supra), referring to provisions of Tenth Schedule of the
Constitution, the Apex Court observed that:
"28. The Speaker of the House is, accordingly, a competent statutory authority to decide

ELEP No. 5 of 2024
22
the question as to whether the Member of a House has become subject to disqualification
under the Tenth Schedule. The question relating to disqualification under the Tenth
Schedule has to be decided by the Speaker and none else. The decision of the Speaker in
this regard is final, however, subject to judicial review on the permissible grounds. In any
view of the matter such an issue cannot be a subject-matter for consideration in an
election petition under the Act, 1951. The submission is more in desperation than in
substance and it is rejected accordingly."
28. In case of Hon'ble Apex Court held
Rajendra Singh Rana (supra),
as under:-
"33. It may be true that collective dissent is not intended to be stifled by the enactment of
sub-article (2) of Articles 102 and 191 of the Tenth Schedule. But at the same time, it is
clear that the object is to discourage defection which has assumed menacing proportions
undermining the very basis of democracy. Therefore, a purposive interpretation of
paragraph 2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called for.
One thing is clear that de-fection is a ground for disqualifying a member from the House.
He incurs that disqualification if he has voluntarily given up his membership of his
original political party, meaning the party on whose ticket he had got elected himself to
the House. In the case of defiance of a whip, the party concerned is given an option either
of condoning the defiance or seeking disqualification of the member concerned. But, the
decision to condone must be taken within 15 days of the defiance of the whip. This aspect
is also relied on for the contention that the relevant point of time to determine the
question is when the Speaker actually takes a decision on the plea for disqualification.
34. As we see it, the act of disqualification occurs on a member voluntarily giving up his
membership of a political party or at the point of defiance of the whip issued to him.
Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth
Schedule is the act of giving up or defiance of the whip. The fact that a decision in that
regard may be taken in the case of voluntary giving up by the Speaker at a subsequent
point of time cannot and does not postpone the incurring of disqualification by the act of
the Legislator. Similarly, the fact that the party could condone the defiance of a whip
within 15 days or that the Speaker takes the decision only thereafter in those cases,
cannot also pitch the time of disqualification as anything other than the point at which
the whip is defied. Therefore in the background of the object sought to be achieved by the
Fifty-Second Amendment of the Constitution and on a true understanding of paragraph 2
of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the
position that emerges is that the Speaker has to decide the question of disqualification
with reference to the date on which the member voluntarily gives up his membership or
defies the whip. It is really a decision ex post facto. The fact that in terms of paragraph 6
a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to
a conclusion that the question has to be determined only with reference to the date of the
decision of the Speaker. An interpretation of that nature would leave the disqualification
to an indeterminate point of time and to the whims of the decision making authority. The
same would defeat the very object of enacting the law. Such an interpretation should be
avoided to the extent possible. We are, therefore, of the view that the contention that only
on a decision of the Speaker that the disqualification is incurred, cannot be accepted.
This would mean that what the learned Chief Justice has called the snow-balling effect,
will also have to be ignored and the question will have to be decided with reference to the
date on which the membership of the Legislature party is alleged to have been voluntarily
given up."
29. In case of Shrimanth Balasaheb Patil (supra), Apex Court in
Paragraph Nos.101 and 106 held as under:-

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"101. This Court has repeatedly held that a person cannot be barred from contesting
elections if he is otherwise qualified to contest the same. This legal position is vividly
illustrated by the Constitution Bench ruling in G. Narayanaswami v. G. Pannerselvam,
(1972) 3 SCC 717. In dealing with the question as to whether a non graduate was
qualified to be a candidate for the graduate constituency for the Legislative Council,
when such a requirement was not prescribed either by the Constitution or the Parliament,
this Court reversed the judgment of the Madras High Court which required the candidate
to be a graduate. This Court held that when the law does not require such a qualification,
it cannot be imposed by the Courts.
106. It is clear that the power to prescribe qualifications and disqualifications for
membership to the State Legislature must be specifically provided for under the
Constitution or by the Parliament by enacting a law. Since neither the Constitution nor
any Act provides for defection to another party as a bar from contesting further elections,
reading such a bar into the nebulous concept of the inherent powers of the Speaker is
impermissible and invalid. Without commenting on whether the Speaker has inherent
powers or not, a Constitution Bench of this Court in the Raja Ram Pal case (supra), while
holding that certain unwritten powers inure with the Parliament under Article 105(3) of
the Constitution, went on to observe even in case of expulsion, the expelled candidate is
not barred from contesting reelection."
30. Thus, it may be seen that in case of G.S. Iqbal Vs. K.M. Khather
(supra), it was held that the Speaker of the House is a competent statutory
authority to decide the question as to whether the Member of the House
has become subject to disqualification under the Tenth Schedule. It was
observed that the question relating to disqualification under the Tenth
Schedule has to be decided by the Speaker and none else. However, in
case of (supra), Hon'ble Apex Court held that the
Rajendra Singh Rana
fact that a decision in that regard may be taken in the case of voluntarily
given up by the Speaker at a subsequent of point of time cannot and does
not postpone the incurring disqualification by the Act of Legislature.
Similar law was reiterated in case of
Ram Chandra Prasad Singh
(supra) and it was observed that the contention that it is only on a decision
of the Speaker that the disqualification is incurred, cannot be accepted. In
view of aforesaid facts and position of law it is clear that on the date of
submission of his nomination paper on 06.05.2024 for election from
aforesaid parliamentary constituency, the respondent / returned candidate
stand disqualified from holding his membership of the Legislative
Assembly of Uttar Pradesh, as he has voluntarily given up his
membership of NISHAD Party. Thus, it shall be deemed that the
respondent / returned candidate has entailed the alleged disqualification

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24
regarding his membership of Assembly from the time, he has voluntarily
given up his membership of NISHAD party.
31. The next question that arises for consideration is that whether due to
the above said disqualification suffered by the returned candidate /
respondent in respect of his membership of Legislative Assembly of Uttar
Pradesh, the respondent / returned candidate Dr. Vinod Kumar Bind was
disqualified for contesting the election for Member of Parliament or for
being chosen as a member of Parliament. As referred above, provisions of
Article 102 (1) Constitution of India provide that a person shall be
disqualified for being chosen as, and for being a Member of either House
of Parliament if he is subject to five disqualifications mention in sub-
clause (a) to (e), whereas, Clause (2) of Article 102 of Constitution of
India provides that a person shall be disqualified for being a Member of
either House of Parliament if he is so disqualified under Tenth Schedule.
It may be noted that words 'being chosen' used in clause (1) of section
102, have not been used in clause (2). Dealing with similar situation in
case of (supra), the Apex Court in Paragraph Nos.15
K.M. Mune Gowda
to 18 held:-
"15. In terms of Article 191 (1) of the Constitution of India, a person if disqualified for
"being chosen as", and for being a member of the Legislative Assembly or Legislative
Council for the reason stated in clause (a) to (e) above i.e., if any person were to suffer
from any of the disqualification in terms of clause (a) to (e), then he would not be entitled
to even contest in a election, let alone being a member of the Assembly or Council.
16. In terms of Article 191(2) of the Constitution of India, a person shall be disqualified
from being a member of the Assembly or Council if he is so disqualified under the Tenth
Schedule. Thus, Article 191(2) of the Constitution of India, is only a disqualification from
being a member of the Assembly or Council. There is no disqualification from contesting
for election or being chosen to a Legislative Assembly or Council.
17. This aspect has been dealt with in Para 130 of the judgment in Shrimanth Balasaheb
Patil's case, which has been reproduced hereinabove and the Hon'ble Apex Court has
come to a categorical conclusion that disqualification under Article 191(2) of the
Constitution of India would only apply for its existing membership and that there is no
prohibition for such person to be re-elected in a by-election or a subsequent election, that
is to say that the disqualification under Article 191 (2) of Constitution of India would not
come in the way of such person contesting for any subsequent election. Applying the said
dicta to the present case, respondent No.3 seeking to contest in the by-election post the
disqualification would be covered by the decision in Shrimanth Balasaheb Patil's case
permitting him to contest such by-election.

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18. Hence, I answer the point raised by holding that the disqualification of a councillor in
terms of Section 3(1)(b) of the Act will not create an embargo or prohibition on such
disqualified person from contesting any subsequent by-election or election post of
disqualification."
32. The observations in the above case law were made in respect of
provisions Article 191 of the Constitution, which are applicable to State
Legislature under chapter IIIrd of the Constitution. The provisions similar
to Article 191 of the Constitution have been enshrined in Article 102 of
the Constitution in chapter IInd of the Constitution in respect of the
Parliament. Thus, above referred case law squarely covers the dispute in
question and it is clear that in terms of Article 191(2) / 102(2) of the
Constitution of India, a person shall be disqualified from being a member
of Assembly or Parliament, as the case may be, if he is so disqualified
under the Tenth Schedule. Thus, the disqualification provided under
Article 191(2) / 102(2) of the Constitution of India, is only for being a
Member of a House and there is no disqualification in regard to contest an
election or being chosen to a Member of Parliament or Legislative
Assembly. As referred above, the case of petitioner is that the respondent
Dr. Vinod Kumar Bind was disqualified under the provisions of Tenth
Schedule, which falls within the purview of Clause (2) of Article 102 of
Constitution of India, where words 'for being chosen' have not been used.
From these provisions as well as the law discussed above, it apparent that
if a member of Legislative Assembly has voluntarily given up
membership of his political party, the disqualification suffered by such
person is that he stands disqualified from continuing or for being as
Member of such Legislative Assembly, but that disqualification does not
disqualify such person 'for being chosen' as a Member of either House of
Parliament. Learned counsel for the petitioner has also relied upon case of
Kanhiya Kumar (supra), wherein it was observed that ' The Tenth
Schedule to the Constitution which added by the Amending Act
acknowledges the existence of political parties and sets out the
circumstances when a member of Parliament or of State Legislature
would be deemed to have defected from his political party and would

ELEP No. 5 of 2024
26
thereby be disqualified for being a member of the House concerned,
hence it is difficult to say that reference to recognition, registration etc of
political parties by Symbols Order is unauthorized and against political
system adopted by our country' . Though, issue involved in the said case
was quite different from the one involved in the present case but reference
made in the said case law also suggests that on the ground of defection in
terms of the Tenth Schedule, the disqualification entailed is regarding the
membership of such person of either House as existed at the time of such
defection. In view of these facts and circumstances, it clear that due to
voluntarily giving up his membership of NISHAD Party, the respondent /
returned candidate Dr. Vinod Kumar Bind stand disqualified from his
then existing membership of Legislative Assembly of Uttar Pradesh but
he was not disqualified for being chosen as a Member of either House of
Parliament. Apparently in the instant matter the provisions of Clause (2)
of Article 102 of the Constitution of India are applicable. Thus, it cannot
be said that returned candidate / respondent Dr. Vinod Kumar Bind was
not qualified or disqualified for being a member of Parliament. In other
words on the ground of voluntarily giving up his membership of NISHAD
party, the returned candidate has not suffered any such disqualification
which may affect his right to contest election for Member of Parliament
from aforesaid constituency. The averments / facts provided in support of
ground 'B' do not provide any basis or ground for disqualification of being
chosen as a Member of Parliament and thus, it can not be said that the
returned candidate was disqualified or not qualified for contesting
election of Member of Parliament from aforesaid constituency. The
pleadings / facts mentioned in connection with ground 'B', if accepted as
such, would not provide any ground to show that respondent / returned
candidate was not qualified or he was disqualified to contest election for
Member of Parliament from aforesaid constituency and thereby election
petition does not fall within the purview of section 100(1)(a) of R.P. Act.
In view of these facts no cause of action arises on account of averments /
facts made in support of ground 'B'.

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27
33. Ground 'A' and 'D' are interconnected, ground 'A' is to the effect that
the result of the election in so far as it concerned to Returned Candidate
namely Dr Vinod Kumar Bind, is materially affected due to improper
acceptance of his nomination paper and similarly in ground 'D' it was
alleged that the election in so far as respondent is concerned, is materially
affected by non-compliance of the provisions of Constitution of India or
R. P. Act or Conduct Rules or Orders issued by the Election Commission
of India as well as the instructions contained in the hand book of
Returning officers. In respect of these grounds essentially the case of the
petitioner is that the respondent / returned candidate has made false
declaration in his nomination paper as well in his affidavit in form - 26
about status of the political party, which is in contravention of para 13 of
E. S. Order. As per petitioner, the returned candidate in his nomination
form as well as in affidavit has shown himself as a candidate of BJP,
whereas he was a member of NISHAD party and a sitting a Member of
Legislative Assembly from NISHAD party and thus he made a false
declaration in his nomination paper and in his affidavit and his
nomination paper was not complete in terms of section 33 of R.P. Act and
Returning Officer improperly accepted his nomination paper. It was
alleged that on that ground petition falls within the purview of section
100(1)(d)(i) of R.P. Act and for non-compliance of provisions of section
33, 33 A of R.P. Act and para 13 of E. S. Order 1968, the petition falls
within the ambit of section 100(1)(d)(iv) of R.P. Act.
34. The relevant provisions of Section 33(1) R.P. Act read as under:
'' 33. Presentation of nomination paper and requirements for a valid nomination. —(1) On
or before the date appointed under clause (a) of section 30 each candidate shall, either in
person or by his proposer, between the hours of eleven o'clock in the forenoon and three
o'clock in the afternoon deliver to the returning officer at the place specified in this behalf
in the notice issued under section 31 a nomination paper completed in the prescribed
form and signed by the candidate and by an elector of the constituency as proposer :
Provided that a candidate not set up by a recognised political party, shall not be deemed
to be duly nominated for election form a constituency unless the nomination paper is
subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a

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day which is a public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency
or teachers' constituency, the reference to "an elector of the constituency as proposer"
shall be construed as a reference to ten per cent. of the electors of the constituency or ten
such electors, whichever is less, as proposers.''
xxxxxx
34-A. The relevant provisions of para 13 of E.S. Order prescribe as under:
'' 13. When a candidate shall be deemed to be set up by a political party.- For the
purposes of an election from any parliamentary or assembly constituency to which this
Order applies, a candidate shall be deemed to be set up by a political party in any such
parliamentary or assembly constituency, if, and only if,-
(a) the candidate has made the prescribed declaration to this effect in his nomination
paper;
(aa) the candidate is a member of that political party and his name is borne on the rolls
of members of the party.''
xxxxxx
35. Thus, para 13 of E.S. Order provides that a candidate shall be deemed
to be set up by a political party in any such Parliamentary or Assembly
constituency, if, and only if such candidate is a member of that political
party and his name is borne on the rolls of members of the party. Section
100(1)(d)(i) of R.P. Act provides that where the result of the election, in
so far as it concerns a returned candidate, has been materially affected due
to the improper acceptance or any nomination, it shall be ground for
declaring such election to be void. Similarly, section 100(1)(d)(iv) of R.P.
Act provides that where the result of the election, in so far as it concerns a
returned candidate, has been materially affected by non-compliance with
the provisions of the Constitution or of R.P. Act or any Rules or Order
under R.P. Act, it shall be ground for declaring such election to be void. It
may be noticed that so far clause (b) and (c) of Section 100(1) of R. P.
Act are concerned, the Election Petitioner is not required to state as to
how corrupt practice had materially affected the result of the election but
when the clause (d)) of Section 100(1) is invoked, it is mandatory to state
that how the result of election was materially affected by improper
acceptance of the nomination form of the returned candidate. In

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29

Mairembam Prithviraj alias Prithviraj Singh Vs Pukhrem
Sharatchandra Singh AIR 2016 Supreme Court 5087, the Apex Court
noted that the allegation that there has been an improper acceptance of a
nomination would not be sufficient for a declaration that the election is
void under Section 100(1)(d)(i) and there has to be further pleading and
proof that the result of the election of the returned candidate was
materially affected. In Mangani Lal Mandal Vs Bishnu Deo Bhandari
(2012) 3 SCC 314, the Apex Court held that the sine qua non for
declaring an election of returned candidate to be void under Section
100(1)(d)(iv) of the RP Act is further proof of the fact that such breach or
non-observance results in materially affecting the result of returned
candidate. Mere violation or breach or non-observance of the provisions
of Constitution of India, R.P. Act, Rules or orders made thereunder would
not ipso facto render the election of returned candidate void. Similarly in
2024 INSC 289, Hon'ble
Karikho Kri vs Nuney Tayang and Another
Apex has held so far the ground under Section 100(1)(d)(iv) of the Act of
1951 is concerned, the provision requires that the established non-
compliance with the provisions of the Constitution or the Act of 1951 or
any rules or orders made thereunder necessarily has to be shown to have
materially affected the result of the election insofar as it concerns the
returned candidate. It was further observed that mere non-compliance or
breach of the Constitution or the statutory provisions would not result in
invalidating the election of the returned candidate under Section
100(1)(d)(iv) as the sine qua non for declaring the election of a returned
candidate to be void on that ground under clause (iv) of Section 100(1)(d)
is further proof of the fact that such breach or non- observance has
resulted in materially affecting the election of the returned candidate.
Thus, 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.

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30
36. From the aforesaid case laws it is clear that in order to declare an
election void under Section 100(1)(d)(i) / (iv) of the R.P. Act, it is
absolutely necessary for the election petitioner to plead that the result of
the election, insofar as it concerned 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 thereunder
and the failure to plead such material facts would be fatal to the election
petition. As stated above, it is the case of the petitioner himself that the
respondent / returned candidate has voluntarily given up his membership
of NISHAD party and it has already been held that on that ground he
entailed disqualification regarding his then existing membership of
Legislative Assembly of Uttar Pradesh. In the instant matter mere bald
averment has been made that the result of election was materially affected
due to alleged improper acceptance of the nomination form of the
returned candidate / respondent and by non-compliance of section 33 R.P.
Act and Para 13 of E.S. Order. Such bald averment can hardly be termed
as material fact to sustain the above referred ground. Further, as
transpiring from the Election Petition, the claim of the petitioner that he
has raised oral and written objection at the time of scrutiny made by the
Returning Officer against the acceptance of nomination paper of the
returned candidate is not acceptable. In this regard except a bald
allegation, nothing has been brought on record. Had he raised any such
objection, in that case the Returning Officer would have dealt with his
objection under sub-section (2) of Section 36 of R.P. Act. Even if it is
accepted that he had raised an oral objection before the Returning Officer
at the time of scrutiny, the petitioner has failed to state material facts as to
how and in which manner the alleged improper acceptance of the
nomination papers of the respondent / returned candidate, the election has
been materially affected. The non-mentioning of the particulars as to how
and in which manner such improper acceptance of nomination paper or
alleged non-compliance of the said provisions has materially affected the
result of the election, is apparent on the face of the Election Petition. As

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stated earlier, in Election Petition, the pleadings have to be precise,
specific and unambiguous. If the allegations contained in Election Petition
do not set out grounds as contemplated in Section 100 R.P. Act and do not
conform to the requirement of Section 81 and 83 of the Act, the Election
Petition is liable to be dismissed under Order VII Rule 11 of CPC. An
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
Election petitioner relies for establishing a cause of action, would entail
rejection of Election Petition under Order VII Rule 11 CPC read with
Section 83 and 87 of the RP Act. As referred above, after voluntarily
giving up his membership of NISHAD party, the respondent / returned
candidate was not disqualified to contest the election for Member of
Parliament. Though, it appears that the issue of violation of provisions of
para 13 of E.S. Order is involved but as stated above the provisions of
Section 100(1)(d) R.P. Act provide that where the result of the election, in
so far as it concerns a returned candidate, has been materially affected due
to the improper acceptance of any nomination or due to non-compliance
of the aforesaid provisions, then it shall be ground for declaring such
election to be void. Thus, to bring the alleged violation of provisions of
para 13 of E.S. Order and section 33 R.P. Act within the purview of
clause (d)(i) or clause (d)(iv) of section 100(1) of R.P. Act, one of the
condition is that the result of the election, in so far as it concerns a
returned candidate, must have been materially affected by the improper
acceptance or any nomination, or by any non-compliance with the
provisions of the Constitution or R.P. Act or of any rules / orders made
under R. P. Act. In (supra), the
Hari Shanker Jain V Sonia Gandhi
Court had an occasion to deal with Section 83(1)(a) of the RP Act and the
Court dismissed the Election petition holding that the bald and vague
averments made in the election petitions do not satisfy the requirements
of pleading "material facts" within the meaning of Section 83(1)(a) of the
RP Act read with the requirements of Order VII Rule 11 CPC. It was
observed as under: -

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"23. Section 83(1)(a) of RPA, 1951 mandates 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 Code of Civil
Procedure, 1908. 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 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. (See Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238 : (1969) 3
SCR 603] , Jitendra Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433] .) Merely
quoting the words of the section like chanting of a mantra does not amount to stating
material facts. Material facts would include positive statement of facts as also positive
averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis [(1999) 3
SCC 737] this Court has held, on a conspectus of a series of decisions of this Court, that
material facts are such preliminary facts which must be proved at the trial by a party to
establish existence of a cause of action. Failure to plead "material facts" is fatal to the
election petition and no amendment of the pleadings is permissible to introduce such
material facts after the time-limit prescribed for filing the election petition.
37. The legal position with regard to the non-compliance of the
requirement of Section 83(1)(a) of the RP Act and the rejection of
Election Petition under Order VII Rule 11 CPC has also been considered
in case of Kanimozhi Karunanidhi V Santhana Kumar 2023 SCC
Online SC 573, wherein it was held as under:
''33. As elaborately discussed earlier, Section 83(1)(a) of RP Act mandates that an
Election petition shall contain a concise statement of material facts on which petitioner
relies, and which facts constitute a cause of action. Such facts would include positive
statement of facts as also positive averment of negative fact. Omission of a singular fact
would lead to incomplete cause of action. So far as the present petition is concerned, there
is no averment made as to how there was non-compliance with provisions of the
Constitution or of RP Act or of the Rules or Order made thereunder and as to how such
non-compliance had materially affected the result of the election, so as to attract the
ground under Section 100(1)(d)(iv) of the RP Act, for declaring the election to be void.
The omission to state such vital and basic facts has rendered the petition liable to be
dismissed under Order VII, Rule 11(a) CPC read with Section 83(i)(a) of the RP Act,
1951''
38. It was observed that if the allegations contained in Election Petition
do not set out grounds as contemplated in section 100 R. P. Act and do
not conform to the requirement of section 81 and 83 of R.P. Act, the
Election Petition is liable to be rejected under Order VII Rule 11 CPC. In
the instant matter after going through the para Nos. 61 to 83, 87, 90, 97,

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33
101 of the election petition, it emerges that except a passing reference in
para No. 89 of the petition that the Returning Officer improperly accepted
nomination paper, which materially affect the result of election and a
reference in para No. 101 of the petition that "the Returning Officer
committed error in accepting nomination paper of returned candidate and
acted contrary to provisions of section 33, 33-A of R.P. Act and did not
follow directions of Election Commission dated 30.09.2013, 26.02.2019
and 28.02.2019, which materially affects the result of election", there are
no material facts and particulars to indicate that how and in which manner
the election of the respondent / returned candidate has been materially
affected on that grounds. Mere bald allegation / averment in the election
petition that the election of the respondent / returned candidate has been
materially affected by the alleged improper acceptance of any nomination
paper or by any non-compliance with the provisions of the E.S. Order
would not be sufficient to bring the election petition within the purview of
Section 100(1)(d)(i)/(iv) of R. P. Act. As held in case of Hari Shankar
Jain (supra) that merely quoting the words of the Section like chanting of
a mantra does not amount to stating material facts. Material facts would
include positive statement of facts as also positive averment of a negative
fact, if necessary. Failure to plead material facts is fatal to the election
petition and no amendment of the pleadings is permissible to introduce
such material facts after the time-limit prescribed for filing the election
petition. As held in case of (supra), ommission of a single
Ram Singh
material fact leads to an incomplete cause of action and statement of
claim becomes bad. In the instant matter after going through the relevant
averments of the election petition, it appears that there are no material
facts to indicate that how and in which manner the result of the election,
in so far as the respondent / returned candidate was concerned, was
materially affected by alleged improper acceptance of his nomination
paper and by alleged non-compliance of the mandatory provisions so as to
constitute a cause of action under Section 100(1)(d)(i) or 100(1)(d)(iv) of
the R.P. Act. The petition lacks material facts and the averments made in

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34
the petition do not constitute a cause of action within the purview of
Section 100(1)(d)(i) or 100(1)(d)(iv) of the R.P. Act and thus, ground 'A'
and 'D' do not give rise to any cause of action.
39. Ground 'C' is to the effect that the election of the respondent / returned
candidate Dr. Vinod Kumar Bind as a Member of Parliament from 78-
Bhadohi parliamentary constituency is illegal and void due to improper
rejection of nomination papers of candidates, namely, Zia-Ul-Haq and
Lalti Devi. As per petitioner, candidates, namely, Zia-Ul-Haq and Lalti
Devi have filed their nomination papers, after completing all the
formalities of valid nomination paper, and the Returning Officer after
receiving their nomination papers was satisfied with the entries made
therein did not issue any check-list to them. It was further alleged that
none of the candidate has raised any objection against the nomination
papers of said two candidates but their nomination papers were illegally
and arbitrarily rejected by the Returning Officer, which is contrary to the
provisions of Section 33, 33A, 34 of R.P. Act.
40. As per provisions of clause (c) of Section 100(1) R.P. Act, one of the
ground to declare election to be void is that where any nomination has
been improperly rejected. In the instant case after going through the
pleadings of election petition, it appears that only general and vague
averments have been made in the election petition that the nomination
papers of said Zia-Ul-Haq and Smt. Lalti Devi were improperly rejected.
In case of (supra) and
Kanimozhi Karunanidhi Hari Shankar Jain
(supra) , it was observed that mere bald and vague allegations without any
basis would not be sufficient compliance of the requirement of stating
material facts in the Election Petition. It is quite general and ambiguous to
allege that nomination papers of some the candidates were improperly
rejected but such allegation hardly bring an election petition within the
purview of Section 100(1)(c) of R. P. Act. As well settled not only
positive statement of facts, even a positive statement of negative fact is
also required to be stated, as it would be a material fact constituting a

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35
cause of action. The material facts which are primary and basic facts have
to be pleaded by the Election petitioner in support of the case set up by
him to show his cause of action and omission of a single material fact
would lead to an incomplete cause of action, entitling the returned
candidate to pray for dismissal of Election petition under Order VII Rule
11(a) CPC read with Section 83(1)(a) of the RP Act.
41. In the instant matter after perusing the relevant pleadings as provided
in para Nos. 13 to 15, 27C, 29 to 60 and 90 of election petition, it appears
that there are absolutely no specific pleadings as on what ground their
nomination papers were rejected. Merely a vague and general allegation
has been made that the nomination papers of said Zia-Ul-Haq and Smt.
Lalti Devi were improperly rejected. It is unsafe in an election case to
accept oral evidence at its face value without looking for assurances from
some surer circumstances or unimpeachable documents. In this
connection a reference may be made to case of Rahim Khan Vs Khurshid
Ahmed [(1974) 2 SCC 660], M. Narayana Rao Vs G. Venkata Reddy
[(1977) 1 SCC 771, Lakshmi Raman Acharya Vs Chandan Singh [(1977)
1 SCC 423 and Ramji Prasad Singh Vs Ram Bilas Jha [(1977) 1 SCC
260. In the case in hand, there is no such averment that the petitioner was
present at the time of scrutiny of nomination papers of said Zia-Ul-Haq
and Smt. Lalti Devi. There is no such averment that said Zia-Ul-Haq and
Smt. Lalti Devi have raised any objection against rejection of their
nomination papers. There are no such primary facts that on which ground
their nomination papers were rejected. It appears that even the petitioner
is not aware that on what ground or defect their nomination paper were
rejected. Only vague and general averments have been made that their
nomination papers were rejected on flimsy grounds. There are no such
pleadings that aforesaid candidates or any person on their behalf, was
present at the time of scrutiny of nomination papers and raised any
objection. Similarly, there are no pleadings that they have sought any time
which was refused by the Returning Officer. It is not the case of petitioner

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36
that he was present before the Returning Officer when said Zia-Ul-Haq
and Smt. Lalti Devi have filed their nomination papers or at the time of
scrutiny of their nomination papers. There is no such averment that said
Zia-Ul-Haq and Smt. Lalti Devi have informed the petitioner about taking
of oath or affirmation or that their nomination papers were valid in all
respects. Aforesaid both the candidates have neither made any complaint
to the Returning officer nor they have filed any election petition. Not a
single material fact is pleaded in support of the plea that the nomination
papers of said Zia-Ul-Haq and Smt. Lalti Devi were improperly rejected.
Thus, it is clear that so far ground 'C' is concerned, the election petition is
bereft of material facts and required particulars and thus, the pleadings do
not disclose any cause of action.
42. Fifth Ground 'E' is to the effect that the respondent / returned
candidate and his agent or any person with his consent committed corrupt
practice of bribery, which falls within the purview of section 123(1)(B)(a)
of R.P. Act. As per section 123(1)(B)(a) of R.P. Act bribery is receipt of,
or agreement to receive any gratification, whether as motive or reward by
a person for standing or not standing as, or for withdrawing or not
withdrawing from being a candidate. As per the petitioner, the President
of NISHAD party has entered into an understanding or agreement with
the State unit of BJP that the respondent be set up as a candidate of BJP
and thereby his candidature was a consequence of the said bargaining
between President of NISHAD party and State unit of BJP and it was
further bargained that the President of NISHAD party will not complaint
to the Speaker under the Tenth Schedule against the membership of the
respondent of Legislative Assembly in order to save his membership from
U.P. Legislative Assembly. As per petitioner, the allegations constitute
corrupt practice within the meaning of section 123(1)(B)(a) of R. P. Act.
43. At this stage, it would be apt to peruse the relevant provisions of
Section 123 of R.P. Act which reads as under :-
123. Corrupt practices.—The following shall be deemed to be corrupt practices for the

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37
purposes of this Act :—
1. "Bribery", that is to say -
*(A)
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a
reward -
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing
from being, a candidate; or
(b)
Explanation.—For the purposes of this clause the term "gratification" is not restricted to
pecuniary gratifications or gratifications estimable in money and it includes all forms of
entertainment and all forms of employment for reward but it does not include the payment
of any expenses bona fide incurred at, or for the purpose of, any election and duly
entered in the account of election expenses referred to in section 78.
44. Recently in case of
Karim Uddin Barbhuiya Vs Aminul Haque
Laskar and Ors 2024 INSC 282 ,the Apex Court observed as under :-
'' It is also pertinent to note at this juncture that a charge of "Corrupt practice" is easy to
level but difficult to prove because it is in the nature of criminal charge and has got to be
proved beyond doubt. The standard of proof required for establishing a charge of
"Corrupt practice" is the same as is applicable to a criminal charge. Therefore, Section
83(1)(b) mandates that when the allegation of "Corrupt practice" is made, the Election
Petition shall set forth full particulars of the corrupt practice that the Election Petitioner
alleges, including as full a statement as possible of the names of parties alleged to have
committed such corrupt practice and the date and place of the commission of each such
practice. The pleadings with regard to the allegation of corrupt practice have to be
precise, specific and unambiguous whether it is bribery or undue influence or other
corrupt practices as stated in Section 123 of the Act. If it is corrupt practice in the nature
of undue influence, the pleadings must state the full particulars with regard to the direct
or indirect interference or attempt to interfere by the candidate, with the free exercise of
any electoral right as stated in Section 123(2) of the Act. We are afraid, Mr. Gupta has
failed to point out from the pleadings of the Election petition as to how the appellant had
interfered or attempted to interfere with the free exercise of any electoral right so as to
constitute "undue influence" under Section 123(2) of the Act.''
45. Thus, so far as the allegations of "Corrupt practice" are concerned, the
petitioner was required to make concise statement of material facts as to
how the respondent / returned candidate had indulged into 'Corrupt
practice'. Mere bald and vague allegations without any basis would not be
sufficient compliance of the requirement of making a concise statement of
the 'material facts' in the Election Petition. The material facts which are
primary and basic facts have to be pleaded in support of the case set up by
the Election petitioner to show his cause of action. In this connection a

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reference may be made to case of
Azhar Hussain V Rajiv Gandhi
(supra), wherein the Hon'ble Apex Court after referring to the earlier
pronouncements in case of Samant N. Balkrishna (supra) and Shri Udhav
Singh Vs Madhav Rao Scindia (supra), held that a charge of 'Corrupt
practice' is easy to level but difficult to prove because it is in the nature of
criminal charge and has got to be proved beyond doubt. The standard of
proof required for establishing a charge of 'Corrupt practice' is the same
as is applicable to a criminal charge. Therefore, Section 83(1)(b) R.P. Act
mandates that when the allegation of "Corrupt practice" is made, the
Election Petition shall set forth full particulars of the corrupt practice that
the Election Petitioner alleges, including as full a statement as possible of
the names of parties alleged to have committed such corrupt practice and
the date and place of the commission of each such practice. The pleadings
with regard to the allegation of corrupt practice have to be precise,
specific and unambiguous whether it is bribery or undue influence or
other corrupt practices as stated in section 123 of R.P. Act.
46. In the instant matter, there are no such primary facts that on what
basis said inference has been drawn by the petitioner that there was some
agreement or understanding between President of NISHAD party and
State Unit of BJP that respondent be set up as a candidate of BJP and the
President of NISHAD Party would not make complaint under Tenth
Schedule against the membership of respondent in U.P. Assembly.
Further, there is no such specific allegation regarding respondent /
returned candidate that he was part of any such agreement that he would
stand or not stand as a candidate, or for withdrawing or not withdrawing
from being, a candidate' in relation to election in aforesaid constituency.
There is no averment that the respondent / returned candidate has received
any gratification or agreed to receive any gratification for standing or for
not standing as a candidate in the election from aforesaid consituency. In
view of these facts the allegation that there was an understanding or
agreement between the President of NISHAD party and State unit of BJP

ELEP No. 5 of 2024
39
that the respondent be set up as a candidate of BJP and his candidature
was a consequence of the said bargaining or that there was any agreement
that the President of NISHAD party will not complain to the Speaker
against the membership of the respondent in Legislative Assembly, hardly
falls within the purview of Section 123(1)(B)(a) R. P. Act. Be that as it
may, there are no primary facts as to when and where alleged agreement
was entered in to or what is the source of information about alleged
understanding or agreement. There is no such pleading that the
respondent / returned candidate was part of any such agreement. The
averments made in support of ground 'E' are quite vague, speculative and
based on surmises and conjectures. The issue involved in case of Raj
Narain (supra) was quite different from the one involved in the present
case and the said case law has no applicability in the present case. As
referred above, the allegation of corrupt practice are in nature of criminal
charges and thus, it is necessary that there should be no vagueness in the
allegations so that the returned candidate may know the case he has to
face. If allegations are vague and general and the particulars of corrupt
practice are not stated in the pleadings, the trial of election petition cannot
proceed for want of cause of action. No doubt the conduct of the
respondent / returned candidate to contest election as candidate of BJP,
without resigning from NISHAD party or without becoming a member of
the BJP, can not be said a healthy practice for Democracy but it would be
interesting to note that it is the case of petitioner himself that the
respondent / returned candidate has voluntarily given up his membership
of NISHAD party and that version has been found acceptable and it has
been held that before filing his nomination from aforesaid Parliamentary
constituency the respondent / returned candidate has voluntarily given up
his membership of NISHAD party. As held earlier the only effect of the
same was that his then existing membership of U.P. Legislative Assembly
was subject to disqualification as per provisions of Tenth Schedule and
Article 191(2) / 102(2) of the Constitution of India but he has suffered no
disqualification for contesting election for Member of Parliament. The

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40
fact remains that allegations made regarding alleged agreement /
understanding between President of NISHAD party and State unit of BJP
are not supported primary facts. I have gone through the relevant
pleadings of the election petition as contained in para Nos. 91 to 103 of
the petition and it appears that the requisite facts, details and particulars of
the alleged corrupt practice are completely missing. The allegations made
by the petitioner are quite vague and speculative in nature and the
Petitioner has failed to provide concrete evidence or detailed allegations
linking the respodent / returned candidate to corrupt practice. There are
absolutely no averments that on what basis it could be said that the
President of NISHAD party has entered into an understanding or
agreement with the State unit of BJP that the respondent be set up as a
candidate of BJP or that his candidature was a consequence of the said
bargaining between President of NISHAD party and State unit of BJP.
There is nothing to indicate that what is source of that inference drawn by
the petitioner. As well settled, pleadings relating to corrupt practice have
to be scrutinised in a strict manner. The allegations are unsupported by
primary documents and facts, rendering them insufficient to constitute
cause of action. The petition did not adhere the mandatory requirements
of Section 83 of R.P. Act. The allegations made regarding alleged corrupt
practice are quite speculative and based on conjectures and do not
disclose any cause of action to proceed on the ground of corrupt practice.
Taking averments made in petition as such, not a single material fact is
pleaded making out an allegation of corrupt practice covered by Section
123(1)(B)(a) of the R.P. Act. The averments made in paragraph nos. 91 to
103 do not constitute a cause of action available to proceed on ground of
corrupt practice as contemplated by Section 123 of the R.P. Act. In view
of aforesaid no cause of action is disclosed on the basis of the averments
made regarding alleged corrupt practice.
47. In view of aforesaid, it is clear that the election petition does not
disclose a cause of action and thus, the application filed on behalf of the

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41
respondent / returned candidate under Order VII Rule 11 CPC is liable to
be allowed. Accordingly, the application under Order VII Rule 11 CPC is
allowed and the election petition is dismissed under Order VII Rule 11
CPC.
48. Both the parties shall bear their own costs.
September 15, 2026
Anand / S Rawat / SP
(Raj Beer Singh,J.)
Digitally signed by :-
ANAND VERMA
High Court of Judicature at Allahabad