# Shailendra Yadav Lalai v. Ramesh & Ors

- **Citation:** (2023) 8 ILRA 1325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-03
- **Case number:** Election Petition No. 3 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-yadav-lalai-v-ramesh-ors-50536
- **Pages:** 26

## Headnote

Sri Dhirendra Kumar Srivastava, Sri Akhilesh
Misra, Sri Amar Bahadur Singh, Sri Babu Lal
Ram, Sri Dharmendra Kumar Singh, Sri Kamlesh
Kumar Rajbhar, Sri Lalta Prasad, Sri Udayan
Nandan, Sri Shashi Nandan ( Sr. Adv.)

Civil Law- Code of Civil Procedure1908-Order
7
-
Rule
11
-The
Representation of the People Act, 1951Section
86(1)-
Material
facts
and
particulars have been pleaded in the election
petition challenging the election on the
ground of improper acceptance of the
nomination
paper
of
respondent
no.1
disclosing a cause of action and a triable
issue under Section 100 (1)(d)(i) of the R.P.
Act, 1951 that the election of respondent
no.1 is vitiated by improper acceptance of
nomination form. Hence, there is compliance
with Section 83(1)(a) & (b) of the R.P. Act,
1951, therefore, both the applications, i.e.,
Applications under Order 7 Rule 11 of C.P.C.
& Application under Section 86(1) of the
Representation
of
Peoples'
Act
are
dismissed.

Application dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,810 of 86,409. This is a partial read: ask again with offset=39810 for what follows._

8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1325
need that the amount of maintenance liable
to be reduced to some extent as is stated
that he earns around Rs. 200/- to 250/- per
day as a daily-wage labour and reliance is
placed thereby court below.

12. Consequently, the amount of
maintenance awarded in the impugned
judgement and order of family court is
modified from Rs. 4,000/- to Rs. 3,000/- per
month subject to same terms and conditions as
specified in the impugned order. Any amount
towards maintenance already paid, shall be
adjusted in accordance with modified amount
of
maintenance
in
present
judgement.
However, it is open to respondent no. 2 to file
an application for alteration of amount of
maintenance awarded by the court below,
which is modified by this order. If she finds
any material in support of the fact that he earns
more monthly amount through his private
work that what is stated by the revisionist
before court below in his evidence.

13. The present revision stands
disposed of with above observations.
----------
(2023) 8 ILRA 1325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Election Petition No. 3 of 2022

Shailendra Yadav Lalai ...Petitioner
Versus
Ramesh & Ors. ...Respondents

Counsel for the Petitioner:
In Person, Sri Saroj Kumar Yadav, Sri Shailendra
Yadav Lalai ( In Person), Sri Anil Sharma (Sr.
Advocate)

Counsel for the Respondents:
Sri Dhirendra Kumar Srivastava, Sri Akhilesh
Misra, Sri Amar Bahadur Singh, Sri Babu Lal
Ram, Sri Dharmendra Kumar Singh, Sri Kamlesh
Kumar Rajbhar, Sri Lalta Prasad, Sri Udayan
Nandan, Sri Shashi Nandan ( Sr. Adv.)

Civil Law- Code of Civil Procedure1908-Order
7
-
Rule
11
-The
Representation of the People Act, 1951Section
86(1)-
Material
facts
and
particulars have been pleaded in the election
petition challenging the election on the
ground of improper acceptance of the
nomination
paper
of
respondent
no.1
disclosing a cause of action and a triable
issue under Section 100 (1)(d)(i) of the R.P.
Act, 1951 that the election of respondent
no.1 is vitiated by improper acceptance of
nomination form. Hence, there is compliance
with Section 83(1)(a) & (b) of the R.P. Act,
1951, therefore, both the applications, i.e.,
Applications under Order 7 Rule 11 of C.P.C.
& Application under Section 86(1) of the
Representation
of
Peoples'
Act
are
dismissed.

Application dismissed. (E-15)

List of Cases cited:

1. Azhar Hussain Vs Rajiv Gandhi, AIR 1986 SC
1253

2. Anil Vasudev Salgaonkar Vs Naresh Kushali
Shigaonkar (2009) 9 SCC 310

3. Virendra Nath Gautam Vs Satpal Singh & ors.
AIR 2007 SC 581

4. Harkirat Singh Vs Amrinder Singh (2005) 13
SCC 511

5. Manani Lal Mandal Vs Bishnu Deo Bhandari
(2012) 3 SCC 314

6. Rajendra Kumar Meshram Vs Vanshmani
Prasad Verma & anr.(2016) 10 SCC 715

7. Kisan Shankar Katohore Vs Arun Dattatray
Sawant & ors. (2014) 14 SCC 162.

8. Resurgence India Vs Election Commission of
India & anr.(2014) 14 SCC 189
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Durai Muthuswami Vs N. Nachiappan & ors.
(1973) 2 SCC 45

10.
Madiraju
Venkata
Ramana
Raju
Vs
Peddireddigari Ramchandra Reddy & ors. (2018)
14 SCC 1

11. Mairembam Prithviraj @ Prithviraj Singh Vs
Pukhrem Sharatchandra Singh (2017) 2 SCC 487

12. V.Narayanaswamy Vs C.P. Thirunavukkarasu
(2000) 2 SCC 294

(Delivered by Hon'ble Saral Srivastava, J.)

Order on Civil Misc. Application
No.6 of 2022, under Order VII Rule 11 of
C.P.C.
&

Order on Civil Misc. Application
No.7 of 2022, under Section 86 (1) of The
Representation of People Act, 1951)

1. Heard Sri Shashi Nandan, learned
Senior Advocate, assisted by Sri Udayan
Nandan, learned counsel for the respondent
no.1/applicant,
and
Sri
Anil
Kumar
Sharma, learned counsel for the electionpetitioner assisted by Sri Saroj Kumar
Yadav, Advocate.

2. The respondent no.1-Ramesh, who
is the successful candidate in the election of
the
Assembly
Constituency
No.365,
Shahganj, District Jaunpur, seeks summary
dismissal of the election petition instituted
by the election-petitioner by filing two
applications; Civil Misc. Application No.6
of 2022 under Order 7 Rule 11 of C.P.C.,
(ii) Civil Misc. Application No.7 of 2022
under Section 86(1) of the Representation
of the People Act, 1951.

3. The Election Commission issued a
Notification under Section 15 of the
Representation of People Act, 1951 (in
short 'R.P. Act, 1951') on 14.01.2022 to
constitute a new Legislative Assembly of
Uttar Pradesh. The election of Assembly
Constituency No.365, Shahganj, District
Jaunpur was scheduled under the 7th phase
of the election. Details of the election
programme as notified are given hereinbelow:-

Starting
day
of
Nomination
10.02.2022
Last date of Nomination 17.02.2022
Scrutiny of Nomination
papers
18.02.2022
Last date of withdrawal
of candidature
21.02.2022
Date of Polls
07.03.2022
Counting
and
Declaration of Result
10.03.2022

4. In the said election, the election
petitioner
along
with
twelve
other
candidates was in the contest for the
member of the Legislative Assembly in
respect to Constituency No.365, Shahganj,
District Jaunpur. The election-petitioner
filed his nomination paper as a candidate of
Samajwadi Party (S.P.) under the symbol
'Bicycle' and respondent no.1 filed his
nomination from Nirbal Indian Shoshit
Hamara Aam Dal Party, popularly known
as 'Nishad Party'. Respondent No. 1 was
declared elected candidate by a margin of
719 votes.

5. The election of respondent no.1 has
been challenged by the election petitioner
primarily on the ground under Section 100
(1) (d) (i) & 100 (1) (d) (iv) of the R.P. Act,
1951. The Election Petitioner has set out the
following grounds in the Election Petition to
challenge the election of respondent no.1:
8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1327

"(i) Because, the result of the
election so far as it concern to respondent
no.1
(returned
candidate)
has
been
materially affected by none compliance of
provisions
of
Constitution
of
India,
Representation of People Act, 1951 and
Conduct of Election Rule, 1961 and order
issued under Representation of People Act,
1951
and
the
orders,
Sections
and
guidelines issued by Election Commission
of India from time to time in exercise of its
power confirmed by the Constitution.

(ii) Because, the result of election
has been materially affected so far as, it
concern
to
the
respondent
no.1
as
Returning Officer and Assistant Returning
Officer acted in contravention of Part-III of
Conduct of Election Rules, 1961 and Rule
54-A of Conduct of Election Rules, 1961,
and the orders, guidelines and instruction
issued by Election Commission of India
from time to time contained in Hand Book
for the Returning Officer.

(iii)
Because,
the
result
of
election has been materially affected as the
respondent no. l illegally been allowed to
participate in the election proceedings and
his nomination were held valid contrary to
legal preposition.

(iv) Because, the respondent no.1
has committed illegality and adopted
corrupt practice by making concealment
and material suppression of facts and
wrongly disclosed criminal antecedent.

(v) Because, the respondent no.1
and his agents influenced the voters and
bribed them by offering and providing
money, sari and liquor, regarding which a
voter namely Ramesh Sonker lodged a first
information report no. 65 of 2022 in Police
Station-Shahganj, District Jaunpur on
06.03.2022, under Sections 323, 504, 506,
188, 3 (2) (Va) of SC/ST Act, 1989
(Amendment Act, 2015).

(vi) Because, the election of
returned
candidate
Ramesh
from
Constituency No.365 Shahganj is illegal
and void due to committing corrupt
practice, bribing the voters, influencing the
electoral machinery and committing fraud
while disclosing the criminal antecedent
and financial strength as well as movable
and immovable assets."

6. In respect of the aforesaid grounds,
the material facts have been stated in the
election petition from paragraph no.16
onwards.

7. Respondent no.1 has filed an
application under Section 86(1) of the R.P.
Act, 1951 urging that the election petitioner
has not provided a concise statement of
material facts on which he relies, therefore,
the election petition does not comply with
the provision of Section 83 of R.P . Act,
1951. It further stated that the election of
respondent no.1 has been challenged by the
election petitioner on the ground of corrupt
practices alleged to have been committed
by respondent no.1, and his agents during
the election. However, the election petition
does not contain a concise statement of
material facts containing full particulars of
any corrupt practices alleged to have been
committed during the election. It is further
stated that the election petition does not
contain a full statement regarding names of
persons alleged to have committed corrupt
practices and the date and place of
commission of each corrupt practice in
accordance with the provisions of Section
83 (1)(a) & (b) of the R.P. Act, 1951. It is
also stated that the election petitioner failed
to file an affidavit in the prescribed format
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
in support of the allegation of such corrupt
practices and particulars thereof, and thus,
has failed to comply with the proviso to
Section 83(1) of the R.P. Act, 1951.

8. It is further stated that the election
of respondent no.1 has been assailed on the
ground of improper acceptance of the
nomination form of respondent no.1, but
the election petition lacks any detail
demonstrating the effect on the result of the
election
by
improper
acceptance
of
nomination form of the respondent no.1 nor
it contains a concise statement of material
fact that the improper acceptance of
nomination form of respondent no.1 has
materially affected the result of the election
so far as it concerns the respondent no.1.

9. It is further stated that the election
petitioner alleged the discrepancy in the
counting of votes in paragraphs nos. 26 to 35 of
the election petition, but these paragraphs do
not contain a concise statement of material
facts. It is also stated that there is no allegation
of manipulation with the EVM and votes polled
and recorded in the elections, and thus, the
allegation of wrong counting of votes is not
supported by any material fact. Respondent
no.1 has sought summary dismissal of the
election petition for non-compliance of Section
81(1), 81(3), 83(1)(a) & (b) and the proviso to
Section 83(1) of the R.P. Act, 1951.

10. In the application under Order 7
Rule 11 of the C.P.C., it is alleged that since
the election petition lacks material facts
containing full particulars of any corrupt
practice, therefore, the election petition
does not disclose a cause of action and is
liable to be rejected under Order 7 Rule
11(1) of C.P.C.

11. The election petitioner filed
objections
to
both
the
applications
contending inter-alia that the election
petition has been filed in accordance with
the provision of Section 83 of the R.P. Act,
1951 and contains all material facts with
full particulars which are necessary to
constitute a cause of action, and as such,
the applications filed by the electionpetitioner are misconceived.

12. Sri Shashi Nandan, learned Senior
Counsel for the respondent no.1/applicant
in support of the aforesaid two applications
has submitted that the election petition
lacks a concise statement of material facts
containing full particulars of corrupt
practices including the names of persons,
date, time, and place in support of
allegations made in the election petition in
support of grounds on which election of
respondent no.1 has been assailed.

13. It is further submitted that it is
evident from the pleadings in the election
petition that it is bereft of the concise
statement of material facts on which the
election petitioner relies and also full
particulars of corrupt practices including as
full statement as possible of the name of
the parties alleged to have committed such
corrupt practice, the date and place of
commission of such corrupt practice, the
election petition is liable to be dismissed
under Section 86(1) of the R.P. Act, 1951
for non-compliance of Section 83(1)(a) &
(b) of the R.P. Act.

14. He further contends that proviso
to
Section
83(1)
of
the
R.P. Act
contemplates that where the petitioner
alleges any corrupt practice, the election
petition shall also be accompanied by an
affidavit in the prescribed form in support
of the allegation of such corrupt practice
and particulars thereof. He submits that the
affidavit as contemplated under the proviso
8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1329
to Section 83(1) of the R.P. Act, 1951 is not
enclosed
with
the
election
petition,
therefore, the election petition deserves to
be
dismissed
summarily
for
noncompliance with the proviso to Section
83(1) of the R.P. Act, 1951.

15. He submits that the petitioner in
order to succeed in challenging the election
of respondent no.1 on the ground of
improper acceptance of the nomination
form has not only to establish that the
nomination form of respondent no.1 has
been improperly accepted, but he has also
to prove that the improper acceptance of
nomination form of the respondent no.1 has
materially affected the result of election
insofar as it concerns the respondent no.1.
He submits that the election petitioner has
not pleaded as to how the result of the
election insofar as it concerns the election
of respondent no.1 has been materially
affected by the improper acceptance of
nomination form of the respondent no.1 . It
is further submitted that the election of the
respondent no.1 has been challenged on the
ground of wrong counting of votes, but the
pleading in support of such ground also
lack material facts and material particulars.

16. He lastly urged that the election
petition lacks material facts and particulars
with respect to the allegation that Form-20
has been prepared illegally. It is also urged
that from perusal of the documents
enclosed as Schedule 13 read with the
allegations made in paragraphs nos.31 and
32 of the election petition, it is clear that
the election petitioner has admitted that he
has
obtained
82,542
votes
and
the
respondent no.1 has obtained 84,947 votes,
therefore, on the own admission of election
petitioner, he has lost the election by 2405
votes. Therefore, the margin of votes by
which respondent no.1 won the election
implies that the result of the election had
not been materially affected. it is submitted
that as the election petition does not
comply with the provision of Section 83 (1)
(a) & (b) and proviso to Section 83(1) of
the Act, 1951, and further it does not
disclose the cause of action and being
barred by the provision of Section 83 read
with Section 86 of the R.P. Act, 1951,
therefore, the election petition deserves to
be rejected summarily.

17. Per contra, Sri Anil Sharma,
learned Senior Counsel submits that there
is compliance with Section 83(1)(a) & (b)
of the R.P. Act, 1951. It is submitted that
the pleadings in the election petition have
to be read as a whole and not in piecemeal.
He submits that all primary and material
facts necessary to disclose a cause of action
have been stated in the Election Petition.
He further submits that the concise
statement of material facts containing full
particulars as contemplated under Section
83(1)(a) & (b) of the R.P. Act, 1951 has
been stated in the election petition in
support of each grounds on which the
election of respondent no.1 has been
assailed by the election petitioner. Thus,
there is compliance with Section 83(1)(a)
& (b) of the R.P. Act, 1951. He submits that
the nomination paper of respondent no.1
has been improperly accepted on account
of suppression of material facts inasmuch
as respondent no.1 has suppressed his
criminal antecedents and has also not
disclosed details of the property and the
income tax, and since the suppression of
facts is of substantial in nature, therefore,
the nomination form of the respondent no.1
has been improperly accepted by the
Returning Officer. Accordingly,
it
is
submitted that the improper acceptance of
the nomination paper of respondent no.1
has obviously materially affected the result
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
of the election so far as it concerns
respondent no.1 for the reason that if the
nomination form of respondent no.1 had
not been improperly accepted, he could not
have contested the election. Accordingly,
he submits that the two applications filed
by respondent no.1 seeking summary
dismissal of the election petition are liable
to be rejected.

18. The judgments relied upon by
both the learned counsel for the parties
shall be referred to an appropriate place.

19. I have considered the rival
submissions advanced by the learned
counsels for the parties and perused the
record.

20. The application under Section
86(1) of the R.P. Act, 1951 has been filed
by
respondent
no.1
alleging
noncompliance with Section 83(1)(a) & (b) and
proviso to Section 83(1) of the R.P. Act,
1951. Section 83 of the R.P. Act, 1951
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]. "

21. In other words, the election
petition should not only contain the concise
statement of material facts on which the
election petitioner relies, but shall set forth
full particulars of any corrupt practice
alleged by the election petitioner including
as full statement as possible of the names
of the parties alleged to have committed
such corrupt practices, and the date and
place of the commission of each such
corrupt practice, duly signed by the
petitioner and verified in the manner
prescribed
under
the
C.P.C.
in
the
verification of pleadings in the light of
Section 83 of the R.P. Act, 1951.

22. Now, it is to be seen whether the
election petition complies with the mandate
of Section 83(1)(a) & (b) and proviso to
Section 83(1) of the R.P. Act, 1951.

23 . In the case of Azhar Hussain Vs.
Rajiv Gandhi, AIR 1986 SC 1253, the
Apex Court has elaborated what exactly is
the essence of expression 'material facts
and
particulars'
which
the
election
petitioner shall incorporate to meet the
requirement of Section 83(1)(a) & (b) of
the R.P. Act, 1951. Paragraph no.14 of the
said judgment is reproduced herein-below:-
8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1331

"14. Before we deal with these
grounds
seriatim,
we
consider
it
appropriate to restate the settled position of
law as it emerges from the numerous
decisions of this Court which have been
cited before us in regard to the question as
to what exactly is the content of the
expression `material facts and particulars',
which
the
election
petitioner
shall
incorporate in his petition by virtue of
Section 83(1) of the Act.

(1) What are material facts and
particulars ?

Material facts are facts which if
established would give the petitioner the
relief asked for. The test required to be
answered is whether the Court could have
given a direct verdict in favour of the
election petitioner in case the returned
candidate had not appeared to oppose the
election petition on the basis of the facts
pleaded in the petition. (1969) 3 SCR 217:
(AIR 1969 SC 734) Manubhai Nandlal
Amarsey v. Popatlal Manilal Joshi.

(2) In regard to the alleged
corrupt
practice
pertaining
to
the
assistance obtained from a Government
servant, the following facts are essential to
clothe the petition with a cause of action
which will call for an answer from the
returned candidate and must therefore be
pleaded. ( 1972) 2 SCR 742: (AIR 1972 SC
515) Hardwari Lal v. Kanwal Singh,

a) mode of assistance;

b) measure of assistance; and

c) all various forms of facts
pertaining to the assistance.

(3) In the context of an allegation
as regards procuring, obtaining, abetting
or attempting to obtain or procure the
assistance of Government servants in
election it is absolutely essential to plead
the following :

(a) kind or form of assistance
obtained or procured;

(b) in what manner the assistance
was obtained or procured or attempted to
be obtained or procured by the electioncandidate for promoting the prospects of
his election (AIR 1972 SC 515).

(4) The returned candidate must
be told as to what assistance he was
supposed to have sought, the type of
assistance, the manner of assistance, the
time of assistance, the persons from whom
the actual and specific assistance was
procured (AIR 1972 SC 515).

(5)
There
must
also
be
a
statement in the election petition describing
the manner in which the prospects of the
election was furthered and the way in
which the assistance was rendered (AIR
1972 SC 515) (supra).

(6) The election petitioner must
state with exactness the time of assistance,
the manner of assistance, the persons from
whom assistance was obtained or procured,
the time and date of the same, all these will
have to be set out in the particulars (AIR
1972 SC 515) (supra)."

24. Reference may also be had to the
judgment in the case of Anil Vasudev
Salgaonkar
Vs.
Naresh
Kushali
Shigaonkar (2009) 9 SCC 310, wherein it
is held that the election petition can be
summarily rejected in the exercise of power
under the Code of Civil Procedure if the
mandatory requirement enjoined by Section
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
83 of the R.P. Act, 1951 to incorporate the
material facts in the election petition are
not complied with. In the context of the
present case, paragraph nos. 57 to 59 of the
said judgment is reproduced herein-below:-

"57. It is settled legal position
that all "material facts" must be pleaded by
the party in support of the case set up by
him within the period of limitation. Since
the object and purpose is to enable the
opposite party to know the case he has to
meet with, in the absence of pleading, a
party cannot be allowed to lead evidence.
Failure to state even a single material fact
will entail dismissal of the election petition.
The election petition must contain a
concise statement of "material facts" on
which the petitioner relies.

58. There is no definition of
"material
facts"
either
in
the
Representation of the People Act, 1951 nor
in the Code of Civil Procedure. In a series
of judgments, this Court has laid down that
all facts necessary to formulate a complete
cause of action should be termed as
"material facts". All basic and primary
facts which must be proved by a party to
establish the existence of cause of action or
defence are material facts. "Material facts"
in other words mean the entire bundle of
facts which would constitute a complete
cause of action. This Court in Harkirat
Singh v. Amrinder Singh (2005) 13 SCC
511 tried to give various meanings of
"material facts". The relevant paragraph
48 of the said judgment is reproduced as
under:-

" 48. The expression 'material
facts' has neither been defined in the Act
nor in the Code. According to the
dictionary
meaning,
'material'
means
'fundamental', 'vital', 'basic', 'cardinal',
'central', 'crucial', 'decisive', 'essential',
'pivotal', indispensable', 'elementary' or
'primary'.
[Burton's
Legal
Thesaurus,
(Third Edn.),p.349]. The phrase 'material
facts', therefore, may be said to be those
facts upon which a party relies for its claim
or defence. In other words, 'material facts'
are facts upon which the plaintiff's cause of
action or the defendant's defence depends.
What particulars could be said to be
'material facts' would depend upon the
facts of each case and no rule of universal
application can be laid down. It is,
however, absolutely essential that all basic
and primary facts which must be proved at
the trial by the party to establish the
existence of a cause of action or defence
are material facts and must be stated in the
pleading by the party."

59. In the context of a charge of
corrupt practice, "material facts" would
mean all basic facts constituting the
ingredients of the particular corrupt
practice alleged, which the petitioner (the
respondent herein) is bound to substantiate
before he can succeed on that charge. It is
also well-settled that if "material facts" are
missing they cannot be supplied after
expiry of period of limitation for filing the
election petition and the pleading becomes
deficient."

25. The two judgments, namely,
Virendra Nath Gautam Vs. Satpal Singh
and Others AIR 2007 SC 581 & Harkirat
Singh Vs. Amrinder Singh (2005) 13 SCC
511 relied upon by the learned counsel for
the election petitioner also reiterates what
constitutes
the
'material
facts'
and
'particulars' and the distinction between the
'material facts' and 'particulars'. Paragraph
nos.33 & 34 of the judgment of Virendra
Nath Gautam (supra) is reproduced
herein below:-
8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1333

"33.
A
distinction
between
'material facts' and 'particulars', however,
must not be overlooked.'Material facts' are
primary or basic facts which must be
pleaded by the plaintiff or by the defendant
in support of the case set up by him either
to prove his cause of action or defence.
'Particulars', on the other hand, are details
in support of material facts pleaded by the
party. They amplify, refine and embellish
material facts by giving distinctive touch to
the basic contours of a picture already
drawn so as to make it full, more clear and
more informative. 'Particulars' thus ensure
conduct of fair trial and would not take the
opposite party by surprise.

34. All 'material facts' must be
pleaded by the party in support of the case
set up by him. Since the object and purpose
is to enable the opposite party to know the
case he has to meet with, in the absence of
pleading, a party cannot be allowed to lead
evidence. Failure to state even a single
material fact, hence, will entail dismissal of
the suit or petition. Particulars, on the
other hand, are the details of the case
which is in the nature of evidence a party
would be leading at the time of trial."

26. In the case of Harkirat Singh
(supra), the Apex Court again reiterated
the distinction between the 'material facts'
and 'material particulars'. Paragraph nos. 51
and 52 of the said judgment is reproduced
herein-below:-

"51.
A
distinction
between
"material facts" and "particulars", however,
must not be overlooked. "Material facts" are
primary or basic facts which must be pleaded
by the plaintiff or by the defendant in support
of the case set up by him either to prove his
cause of action or defence. "Particulars", on
the other hand, are details in support of
material facts pleaded by the party. They
amplify, refine and embellish material facts
by giving distinctive touch to the basic
contours of a picture already drawn so as to
make
it
full, more
clear
and
more
informative.
"Particulars"
thus
ensure
conduct of fair trial and would not take the
opposite party by surprise.

52. All "material facts" must be
pleaded by the party in support of the case set
up by him. Since the object and purpose is to
enable the opposite party to know the case he
has to meet with, in the absence of pleading,
a party cannot be allowed to lead evidence.
Failure to state even a single material fact,
hence, will entail dismissal of the suit or
petition. Particulars, on the other hand, are
the details of the case which is in the nature
of evidence a party would be leading at the
time of trial."

27. The object of conferring the power
upon the Court to summary dismissal of the
election petition if it lacks material fact and
does not disclose a cause of action is to
ensure that litigation which is meaningless
and bound to prove abortive should not
consume the precious time of the Court and
save the respondents from harassment and to
relieve him of the psychological burden of
litigation so as to be free to follow their
ordinary pursuits and discharge their duties. It
is obvious that if the sword of Damocles of
election petition keeps hanging on an elected
member of the legislature, he would not feel
sufficiently free to devote his wholehearted
attention to matters of public importance that
need his attention for the betterment of the
people of the constituency for which he has
been an elected representative.

28. The aforesaid judgments have
emphasized that the 'material facts' are
primary or basic facts which must be
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
pleaded by the petitioner or by the
respondent in support of the case set up by
him either to prove his cause of action or
defence. The particulars on the other hand
are details in support of material facts
pleaded by the party. All the 'material facts'
must be pleaded by the party in support of
the case set up by him since the object and
purpose of pleading is to enable the
opposite party to know the case he has to
meet, failure to state even a single material
fact will entail dismissal of the Election
Petition. The material facts would include a
positive statement of facts as also a positive
averment of a negative fact.

29. It is also pertinent to note that the
failure to plead material facts is fatal to the
election petition, and no amendment of
pleading to incorporate such material facts
can be allowed after the limitation for filing
the election petition expires. To reject an
election petition summarily on the ground
that it does not disclose a cause of action,
the Court is obliged to look at the pleadings
in the election petition and nothing else.

30. Now, in the light of the aforesaid
principles explaining the object why the
compliance of Section 83(1)(a) & (b) of the
R.P. Act, 1951 is mandatory, the Court
proceeds
to
analyse
the
respective
arguments of the parties to find out whether
the election petition complies with the
requirement of Section 83(1)(a) & (b) and
proviso to Section 83 and whether it
discloses a cause of action or not.

31. The first ground of challenge to
the election of respondent no.1 is that the
election has been conducted on the basis of
a revised anti-dated electoral roll dated
17.02.2022, from which the name of the
number of voters had been removed whose
names were in the electoral roll published
on 05.01.2022. In this respect, necessary
averments have been made in paragraphs
nos. 17 to 19 of the election petition.

32. It is stated in para-17 of the
election petition that the Returning Officer
of the constituency issued the electoral
roll/voter list on 05.01.2022 which was
available in the office of the Returning
Officer and was also uploaded on the
website of the Election Commission. It is
further pleaded in para-18 of the election
petition that the Returning Officer extended
the opportunity to those eligible persons
whose names were not incorporated in the
electoral roll/voter list dated 05.01.2022 for
asserting their claims for inclusion of their
names in the electoral roll/voter list for the
purpose of polling on 07.03.2022. It is
further stated that though the opportunity
for addition in the names is permitted, the
names cannot be deleted from the final
electoral roll published on 05.01.2022. It is
further stated that the election petitioner
filed the documents relating to about
25,000 residents whose names were not in
the electoral roll/voter list published on
05.01.2022 for adding their names to the
electoral roll. The authorities sat tight over
the matter, and on 04.03.2022 ante dated
revised electoral roll/voter
list dated
17.02.2022 was made available to the
election agents of the election-petitioner.

33. The election petitioner in para-19
of the election petition further states that
Booth Level Officer known as 'BLO'
distributed voter information slip (BLO
parchi) to the electors/voters of the
aforesaid constituency. Those voters on the
date of polling on 07.03.2022 reached the
polling center for casting their votes, but
they were not allowed to cast their votes on
the ground that their names were not on the
electoral
roll/voter
list.
The
election
8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1335
petitioner in this respect has given details
of 113 voters in paragraph no.19 of the
election petition.

34. It is submitted by Sri Shashi
Nandan,
learned
Senior
Counsel
for
respondent
no.1
that
the
averments
contained in paragraphs nos. 17 to 19 of the
election petition are vague and do not state
material facts. It is submitted that a vague
statement in para-18 of the election petition
has been made that the election- petitioner
filed documents relating to about 25,000
residents of the constituency whose names
did not find place in the electoral roll/voter
list published on 05.01.2022 for adding
their names in the elector list/voter list. It is
submitted that neither the names of the
persons nor any material supporting the
fact that they were residents of the
constituency have been pleaded in the
election petition, and thus, the said
averments are not sufficient to make out a
cause of action. He further submits that it is
stated in para-19 of the election petition
that BLO has distributed the voter slip to
the electors, but the name of the BLO who
distributed the voter information slip to the
voters has not been stated. He further
submits that the election petitioner has
stated the names of only 113 persons in
para-19 of the election petition who were
not allowed to cast their votes as their
names did not find mentioned in the
electoral roll/voter list. He submits that
even if the allegation that 113 persons were
not allowed to cast their votes is correct,
that would not materially affect the
election, since admittedly, respondent no.1
has won the election by 719 votes.

35. It is argued by Sri Anil Sharma,
learned Senior Counsel for the election
petitioner that once the final electoral roll is
published according to Section 14(1)(b) of
the Representation of People Act, 1950, it
cannot be altered without following the
procedure contemplated under Section 21
of the R.P. Act, 1950, and in the instant
case, the procedure under Section 21 of the
R.P. Act, 1950 has not been followed in
altering the electoral roll/voter list by
publishing an ante dated revised electoral
roll/voter list dated 17.02.2022, therefore,
the election held on the basis of said voter
list is vitiated. He submits that the reading
of paragraphs 17 to 19 of the election
petition discloses that it contains material
facts
and
particulars,
therefore,
the
pleadings are complete and disclose a cause
of action raising a triable issue with regard
to the challenge of the election on the
ground that the election was conducted by
an illegal and ante- dated electoral roll, and
this has materially affected the result of the
election so far as it concerns the respondent
no.1.

36. Perusal of paragraphs 17 to 19 of
the election petition in support of the
allegation that the election was held on the
basis of an illegal electoral roll/voter list
reveals that the pleadings in this regard are
completely vague and lacks necessary
material fact to constitute a cause of action
raising a triable issue in the election
petition on the said ground.

37. It is pertinent to note that the
election petitioner has stated that he had
submitted the documents relating to 25,000
residents of the constituency whose names
had been left out from the electoral roll
published on 05.01.2022, but names of
such residents are not stated nor details of
such residents have been disclosed in the
election petition to demonstrate that they
were residents of the constituency and were
entitled to vote and non-inclusion of their
names have materially affected the result of
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
the election. The election petitioner has not
stated the name of the authority to whom
the election petitioner had submitted the
documents for adding the names of these
25,000 residents to the electoral roll.

38. Further, basic and primary facts
with regard to the allegation that an ante
dated
revised
electoral
roll
dated
17.02.2022 was made available to the
election agents of the petitioner on
04.03.2022 are lacking in the election
petition inasmuch as there are no averments
in the election petition as to what was the
illegality committed in preparing the
revised electoral roll/voter
list dated
17.02.2022 and what is the basis to allege
that voter list dt.17.02.2022 is ante- dated.
Only a vague assertion in one line has been
made in paragraph no.18 of the election
petition that ante dated revised voter list
dated 17.02.2022 was made available to the
election agent of the petitioner and officials
of the election. It is also relevant to point
out that there is no pleading in the election
petition
as
to
how
the
procedure
contemplated under Section 21 of the
Representation of People Act, 1950 for
omitting or adding the names of the voters
in the electoral roll was not followed.

39. Further, the name of the BLO who
distributed the information slip (BLO
parchi) to the voters has not been disclosed
nor details of persons whose names have
been removed/deleted from the final
electoral
roll/voter
list
published
on
17.01.2022 have been stated in the election
petition.

40. It is also pertinent to note that the
election petitioner has disclosed the name
of only 113 persons, who according to the
election petitioner were not allowed to cast
their votes. If the said allegation is taken to
be true, then how it materially affected the
result of the election of respondent no.1 is
not pleaded.

41. It is settled in law that if the
election is challenged on the ground
mentioned under Section 100(1)(d)(iv) of
the R.P. Act, 1951, it is mandatory for the
election petitioner to state that the result of
the election in so far as the returned
candidate is concerned, has been materially
affected. In this respect, it would be apt to
reproduce paragraphs nos. 10 to 12 of the
judgment of the Apex Court in the case of
Manani Lal Mandal Vs. Bishnu Deo
Bhandari (2012) 3 SCC 314:-

"10. A reading of the above
provision with Section 83 of the 1951 Act
leaves no manner of doubt that where a
returned candidate is alleged to be guilty of
non-compliance of the provisions of the
Constitution or the 1951 Act or any rules or
orders made thereunder and his election is
sought to be declared void on such ground,
it is essential for the election petitioner to
aver by pleading material facts that the
result of the election insofar as it concerned
the returned candidate has been materially
affected by such breach or non-observance.
If the election petition goes to trial then
the election petitioner has also to prove
the charge of breach or non-compliance as
well as establish that the result of the
election has been materially affected.