# Tej Bahadur v. Sri Narendra Modi

- **Citation:** (2019) 4 ILRA 939
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-06
- **Case number:** Election Petition No. 17 of 2019
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tej-bahadur-v-sri-narendra-modi-44969
- **Pages:** 30

## Headnote

Representation of the People Act, 1951 -
Section 80, 80-A ,81 and 100 - Section
123(2), read with Section 134 of the Act
- Lok Sabha election - election petition
is not an action at common law, nor in
equity, but statutory in nature - the
person filing election petition if not a
"duly nominated candidate", will have
"no locus standi to file an election
petition .

An election petition, which does not disclose 'a
cause of action', has to be dismissed at the
threshold - 'Cause of action' invests the person
with right to sue - When a person has no
interest at all, or no sufficient interest to
support a particular legal claim or action, he
will have no locus standi to sue - Locus to
maintain action in court of law, is threshold
test, an integral part of cause of action,
940 INDIAN LAW REPORTS ALLAHABAD SERIES
entitling a person to the relief claimed - Bereft
of locus, no action, however sacrosanct, could
survive - Thus, a plaint filed by a person
having no locus to maintain the claim is but to
be rejected. (Para 22)

Held: - The petitioner is neither an elector nor
a candidate at the election which he seeks to
challenge and would therefore have no locus
to file election petition. (Para 60 & 71)

Election Petition dismissed. (E-7)

List of cases cited: -

1.Jyoti Basu & Others vs. Debi Ghoshal &
Others, AIR 1982 SC 983

2.Sunil Kumar Kori vs. Gopal Das Kabra,
(2016) 10 SCC 467,

3.Azhar Hussain vs. Rajiv Gandhi, AIR 1986 SC
1253

4.Madiraju
Venkata
Ramana
Raju
vs
Peddireddigari Ramachandra Reddy, (2018) 14
SCC 1

5.Ashraf Kokkur vs, K.V Abdul Khader, (2015)
1 SCC 29

6T. Arivandandam vs. T.V. Satyapal (1977) 4
SCC 467)

7.Uttamrao Shivdas Jankar v. Ranjitsinh
Vijaysinh Mohite Patil, (2009) 13 SCC 131

8.Ramesh Rout v. Rabindra Nath Rout,
2012(1) SCC 762

9.M.
Narasappa
v.
M.
Krishna
Reddy,
MANU/AP/0258/ 1984.

10.Sundar Lal v. Sampat Lal, AIR 1963 Raj. 226

11.S.M. Banerji v. Sri Krishna Agarwal, AIR
1960 SCC 368

12.Durga Shankar Mehta v. Raghuraj Singh,
AIR 1954 SC 520

13.Charan Lal Sahu v. Dr. APJ Abdul Kalam
and others, (2003) 1 SCC 609
14.Charan Lal Sahu Vs. Neelam Sanjeeva
Reddy, 1978 (2) SCC 500

15.Charan Lal Sahu Vs. Giani Zail Singh, 1984
(1) SCC 390

16.Charan Lal Sahu Vs. K.R. Narayanan &
Ors., 1998 (1) SCC 56

17.Mithilesh Kumar Sinha v. Returning Officer
for Presidential Election and others, 1993 Supp
(4) SCC 386

18.Devendra Patel vs. Ram Pal Singh &
Others, 2013 (10) SCC 80

19.Hari Kishan Lal vs. Atal Bihari Bajpai, AIR
2003 Alld 128

20.Nandiesha Reddy vs Mrs. Kavitha Mahesh,
2011 (7) SCC 721

21.Rakesh Kumar vs. Sunil Kumar, (1999) 2 SCC 489

## Text

_Characters 0–39,866 of 99,976. This is a partial read: ask again with offset=39866 for what follows._

4 All. Tej Bahadur Vs. Sri Narendra Modi
939
Hon'ble Supreme Court held that Article
173(b) of the Constitution of India
provides for a disqualification. A person
can not be permitted to occupy an office
for
which
he is disqualified. The
endeavour of the Court therefore should
be to see that a disqualified person should
not hold the office but should not at the
same time unseat a qualified person
therefor.

Conclusion on Issue No.(a) and (b)

59. For all the reasons aforestated, I
answer issues No.(a) and (b) in Negative,
i.e. against the respondent that as on the
date of filing of nomination paper on
25.1.2017 and on the date of scrutiny of
nomination paper on 28.01.2017 and on
the date of declaration of result of
Legislative Assembly Election of 34-Suar
Assembly
Constituency
of
District
Rampur on 11.03.2017 the respondent
was less than Twenty Five Years of age
and thus was not qualified to be chosen to
fill the seat in legislature of the State in
terms
of
Article
173
(b)
of
the
Constitution of India.

Conclusion on Issue No.(c)

60. In view of my answer to issues
No.(a) and (b) in NEGATIVE i.e. against
the respondent, the Election Petition is
allowed. The election of the respondent
from 34-Suar Assembly Constituency is
declared void and consequently it is set
aside.

Order

61. In view of the aforesaid, the
Election-Petition is Allowed. The election
of the respondent from 34-Suar Assembly
Constituency of District Rampur is
declared void and consequently it is set
aside. Let the substance of this decision
be intimated by the Registrar General of
this Court to the Election Commission
and the Speaker of the Uttar Pradesh
Legislative Assembly . A certified copy
of this decision be sent to the Election
Commission of India forthwith.

There shall be no order as to costs.
----------
(2019)12 ILR A939

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2019
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Election Petition No. 17 of 2019

Tej Bahadur ...Petitioner
Versus
Sri Narendra Modi ...Respondent

Counsel for the Petitioner:
Sri Shailendra, Sri Dharmendra Singh, Sri
Tej Bahadur(In Person)

Counsel for the Respondent:
Sri K.R. Singh, Sri Dheeraj Jain, Dr.
Santosh Jain, Sri Satya Pal Jain

Representation of the People Act, 1951 -
Section 80, 80-A ,81 and 100 - Section
123(2), read with Section 134 of the Act
- Lok Sabha election - election petition
is not an action at common law, nor in
equity, but statutory in nature - the
person filing election petition if not a
"duly nominated candidate", will have
"no locus standi to file an election
petition .

An election petition, which does not disclose 'a
cause of action', has to be dismissed at the
threshold - 'Cause of action' invests the person
with right to sue - When a person has no
interest at all, or no sufficient interest to
support a particular legal claim or action, he
will have no locus standi to sue - Locus to
maintain action in court of law, is threshold
test, an integral part of cause of action,
940 INDIAN LAW REPORTS ALLAHABAD SERIES
entitling a person to the relief claimed - Bereft
of locus, no action, however sacrosanct, could
survive - Thus, a plaint filed by a person
having no locus to maintain the claim is but to
be rejected. (Para 22)

Held: - The petitioner is neither an elector nor
a candidate at the election which he seeks to
challenge and would therefore have no locus
to file election petition. (Para 60 & 71)

Election Petition dismissed. (E-7)

List of cases cited: -

1.Jyoti Basu & Others vs. Debi Ghoshal &
Others, AIR 1982 SC 983

2.Sunil Kumar Kori vs. Gopal Das Kabra,
(2016) 10 SCC 467,

3.Azhar Hussain vs. Rajiv Gandhi, AIR 1986 SC
1253

4.Madiraju
Venkata
Ramana
Raju
vs
Peddireddigari Ramachandra Reddy, (2018) 14
SCC 1

5.Ashraf Kokkur vs, K.V Abdul Khader, (2015)
1 SCC 29

6T. Arivandandam vs. T.V. Satyapal (1977) 4
SCC 467)

7.Uttamrao Shivdas Jankar v. Ranjitsinh
Vijaysinh Mohite Patil, (2009) 13 SCC 131

8.Ramesh Rout v. Rabindra Nath Rout,
2012(1) SCC 762

9.M.
Narasappa
v.
M.
Krishna
Reddy,
MANU/AP/0258/ 1984.

10.Sundar Lal v. Sampat Lal, AIR 1963 Raj. 226

11.S.M. Banerji v. Sri Krishna Agarwal, AIR
1960 SCC 368

12.Durga Shankar Mehta v. Raghuraj Singh,
AIR 1954 SC 520

13.Charan Lal Sahu v. Dr. APJ Abdul Kalam
and others, (2003) 1 SCC 609
14.Charan Lal Sahu Vs. Neelam Sanjeeva
Reddy, 1978 (2) SCC 500

15.Charan Lal Sahu Vs. Giani Zail Singh, 1984
(1) SCC 390

16.Charan Lal Sahu Vs. K.R. Narayanan &
Ors., 1998 (1) SCC 56

17.Mithilesh Kumar Sinha v. Returning Officer
for Presidential Election and others, 1993 Supp
(4) SCC 386

18.Devendra Patel vs. Ram Pal Singh &
Others, 2013 (10) SCC 80

19.Hari Kishan Lal vs. Atal Bihari Bajpai, AIR
2003 Alld 128

20.Nandiesha Reddy vs Mrs. Kavitha Mahesh,
2011 (7) SCC 721

21.Rakesh Kumar vs. Sunil Kumar, (1999) 2 SCC 489

(Delivered by Hon'ble Manoj Kumar
Gupta,J.)

1. By means of the present petition,
filed under Section 80, 80-A and 100 of the
Representation of the People Act, 1951
(hereinafter referred to as ''the Act'), the
petitioner has called in question the election of
the respondent to the 17th Lok Sabha from
77th Parliamentary Constituency (Varanasi),
held in April - May 2019. The petitioner has
sought a declaration to the effect that the
election of the respondent be declared void
and the order passed by the Returning Officer
dated 1.5.2019, rejecting his nomination, be
set aside. He has also made a prayer for taking
action against the Returning Officer for
misuse of official powers by invoking Section
123(2), read with Section 134 of the Act.

2. The petition was entertained by
this court and notice was issued to the
respondent, calling for his reply. In
response thereto, the respondent entered
4 All. Tej Bahadur Vs. Sri Narendra Modi
941
appearance. An application was filed by
him under Order 6 Rule 16 C.P.C. and
Order VII Rule 11 C.P.C., read with
Section 86(1) of the Act, praying for
striking off paragraphs-4 to 28 of the
petition and also for dismissing the same
by exercising power under Order VII Rule
11 C.P.C., as it discloses no cause of
action and also for the reason that the
petitioner has no locus standi to file the
same. The petitioner filed a reply to the
said application by way of a counter
affidavit.
Thereafter,
Sri
Shailendra,
learned Senior Counsel for the petitioner,
assisted by Sri Dharmendra Singh, and Sri
Satya Pal Jain, learned Senior Advocate
for the respondent, assisted by Sri Dheeraj
Jain, Sri K.R. Singh and Dr. Santosh Jain,
were heard at length on the said
application.

3. The case set up by the petitioner
is that he filed his nomination for the
election as an independent candidate on
24.4.2019. Subsequently, he filed another
nomination as official candidate of
Samajwadi Party on 29.4.2019, the last
date for filing of nomination. He was
issued a checklist by Returning Officer on
the same date at 1:43 p.m., without raising
any objection in regard to the nomination
papers. On 30.4.2019, the date fixed for
scrutiny, he received a notice from the
Returning Officer at 3:03 p.m., followed
by another notice on the same date, at
6:15 p.m., alleging that the petitioner had
not filed certificate from the Election
Commission to the effect that he had not
been dismissed from the service of
Government of India, on ground of
corruption or disloyalty to the State,
albeit, a period of five years had not
expired from the date of his dismissal on
the date of filing of the nominations, in
terms of Section 9, read with Section
33(3) of the Act. The petitioner claims to
have responded to the said notice by filing
his dismissal order dated 19.4.2017,
before the Returning Officer, pointing out
that although he was dismissed from
service of Government of India, but the
dismissal was not on the ground of
corruption or disloyalty to the State. It is
also asserted that after receipt of second
notice,
he approached the Election
Commission of India on the same day, by
making an application be registered post
and also be sending the same by E-mail,
requesting it to issue the certificate
contemplated under Section 9(2) of the
Act. It is also asserted that on the next
date, i.e. 1.5.2019, his Power of Attorney
submitted application by hand in the
office of the Election Commission of
India at 9:00 a.m., but the certificate was
not
made
available
to
him.
His
nomination
paper
was
rejected
on
1.5.2019 at 11:00 a.m. It is also alleged
that till the filing of the election petition,
he had not been informed about the fate of
his application. He clams to have filed a
writ petition, bearing number 646 of
2019, before the Supreme Court, under
Article 32 of the Constitution of India,
challenging the order of Returning Officer
dated 1.5.2019, but which was rejected by
the Supreme Court by order dated
9.5.2019, declining to entertain the same.
It is asserted that News Channel ABP
telecasted a programme on 16.5.2019
mentioning that the nomination of the
petitioner was rejected on extraneous
considerations and under pressure. The
Returning Officer, as well as the Central
Observer Praveen Kumar had not acted
fairly, but in a partisan manner, in
rejecting the nomination of the petitioner.
The petitioner initially also impleaded the
District Election Officer and the Election
Observer, as party-respondents to the
942 INDIAN LAW REPORTS ALLAHABAD SERIES
election petition, alleging that they did not
discharge their functions objectively and
action be taken against them for misusing
their official powers by invoking Section
134 of the Act. However, on the very first
date of hearing of the election petition, he
got their names deleted from the array of
parties. The petitioner has prayed for
declaring the election of respondent to be
void on the ground that his nomination
was improperly rejected; that nomination
of the respondent was wrongly accepted;
and on account of misuse of official
powers by the Returning Officer and the
Central Observer.

4. It is clear from the facts stated in
the election petition that the petitioner
was in service of Government of India
(Border
Security
Force)
and
was
dismissed on 19.4.2017. On 24.4.2019, as
well as on 29.4.2019, the two dates on
which two different sets of nominations
were filed, the period of five years had
not elapsed, since the dismissal of the
petitioner from service. It is also an
admitted
fact
that
along
with
his
nomination papers, the petitioner did not
file any certificate from the Election
Commission of India to the effect that he
had not been dismissed on ground of
corruption or disloyalty to the State.

5. The application filed by the
respondent under Order VII Rule 11
C.P.C is primarily on the ground that the
petitioner whose nomination was rejected,
could not claim himself to be a candidate
at the election, nor he was elector from
the
parliamentary
constituency
from
where he filed his nomination and
therefore, in view of Section 81 of the
Act, he is not competent to file the
election petition. It has also been alleged
that the election petition is devoid of
material facts, nor discloses any cause of
action. The averments made are wholly
vague and does not raise any triable issue
for consideration by this court. It is also
the case of the respondent that the
pleadings
are
frivolous,
vexatious,
unnecessary, irrelevant and are of such
nature which would prejudice and delay
the fair trial of the election petition.
Consequently, paragraphs-4 to 28 of the
election petition are liable to be struck off.
The
allegations
regarding
wrongful
acceptance of the nomination papers of
the respondent is devoid of material
particulars. Moreover, the allegation of
alleged corrupt practice against officials
of Election Commission of India, without
stating any basis for the same and without
giving any supporting facts or particulars,
do not call for any detailed trial. The
pleadings made in this regard without
furnishing material facts and particulars,
being frivolous and vexatious, are liable
to be struck off, in exercise of power
under Order 6 Rule 16 C.P.C.

6. The petitioner filed a counter
affidavit to the said application and
asserted that since he was not dismissed
on the ground of corruption or disloyalty
to the State, therefore, he would not fall
within the ambit of Section 9 and 33 of
the Act. There is presumption that every
nomination paper is valid, unless the
contrary is prima facie obvious, or has
been made out. In case of doubt as to
validity of a nomination paper, the benefit
of such doubt must go to the candidate
concerned and the nomination should be
held to be valid. The Returning Officer
has misused his power in rejecting the
nominations of the petitioner. It has been
denied that the averments made in the
election petition are vague or that the
election petition does not disclose any
4 All. Tej Bahadur Vs. Sri Narendra Modi
943
cause of action; or that, he has no locus to
file the election petition.

7. Counsel for the petitioner has
raised
objection
against
the
maintainability of the application filed by
the respondent on the ground that it
contains two prayers i.e., one for striking
off the pleadings of the election petition
in exercise of power under Order 6 Rule
16 CPC and the other for rejection of the
petition under Order VII Rule 11 CPC. He
has placed reliance on Rule 28 of the
General Rule Civil, which provides that
separate application should be made in
regard to distinct matter in contending
that the application should be rejected for
the said reason.

8. The objection does not have any
force. Both the prayers are interlinked
with each other and relate to the same
subject matter. The contention of the
respondents is that the pleadings in the
election petition are wholly
vague,
frivolous and vexatious, therefore, such
pleadings should be struck off. The
application goes on to mention that once
the pleadings, as contained in paragraphs
4 to 28 of the election petition are struck
off, apart from the fact that the petitioner
has no locus to file the instant election
petition, it will also be bereft of any cause
of action. Even otherwise, the power
under Order 6 Rule 16 CPC as well as
Order VII Rule 11 CPC could be
exercised by the Court even suo moto
without any application from the rival
side.

9. It is next submitted that the
petitioner has controverted the averments
made in the application by filing counter
affidavit but the respondent has failed to
file any affidavit in rebuttal, therefore the
averments made in the counter affidavit
should be taken to be true. Accordingly,
the application deserves to be rejected.
The argument is wholly misconceived in
as much as both the prayers contained in
the application filed by the respondent
have to be decided on basis of assertions
made in the election petition and not on
basis of the stand taken by the petitioner
in the counter affidavit.

10. It is next urged that the affidavit
filed in support of the application having
been sworn before Notary Public, New
Delhi,
does
not
comply
with
the
requirement of Rule 11 of Ch. XV-A of
the Allahabad High Court Rules. Ch. XVA of the Allahabad High Court Rules
regulates the filing of election petition and
its trial before this Court. Rule 11
stipulates
that
an
application
shall
ordinarily be accompanied by an affidavit.
It also provides that subject to the proviso
to sub-section (1) of Section 83 of the
Act, the provisions of Ch. IV as to
affidavits shall apply to proceedings
under this Chapter. The provision does
not postulates filing of affidavit alongwith
every application. Since the power to
reject election petition under Order VII
Rule 11 could be exercised even suo
moto, therefore, the application even
unsupported by an affidavit would suffice.
Moreover, the provisions of Ch. IV which
relates
to
affidavits
and
Oath
Commissioner,
particularly,
Rule
5
thereof, on which emphasis was laid by
learned counsel for the petitioner, does
not make it imperative that the affidavit
filed in support of the application could
only be sworn before Oath Commissioner
appointed by this Court. It only speaks of
duty of the Oath Commissioner that he
shall not allow an affidavit to be sworn
before him, unless it complies with the
944 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of the said Chapter. Thus, the
objection has no force.

11. Coming to the merits, the first
issue which requires to be answered is
whether an election petition filed under
Section
81
of
the
Act
could
be
dismissed,exercising power under Order
VII Rule 11 C.P.C.

12.

Article
329(b)
of
the
Constitution of India provides that "no
election to either House of Parliament or
to the House or either House of the
Legislature of a State shall be called in
question except by an election petition
presented to such authority and in such
manner as may be provided for by or
under any law made by the appropriate
Legislature".

13. In Jyoti Basu & Others vs.
Debi Ghoshal & Others, AIR 1982 SC
983, the Supreme Court has held that right
to elect, right to be elected and right to
dispute an election, are not fundamental
rights, but pure and simple statutory
rights. "Outside of statute, there is no
right to elect, no right to be elected and
no right to dispute an election. Statutory
creations they are, and therefore, subject
to
statutory
limitation.
An
election
petition is not an action at Common Law,
nor in equity. It is a statutory proceeding
to which neither the common law nor the
principles of equity apply butonly those
rules which the statute makes and applies.
It is a special jurisdiction, and a special
jurisdiction has always to be exercised in
accordance with the statute creating it.
Concepts familiar to Common Law and
Equity must remain strangers to Election
Law unless statutorily embodied. A Court
has no right to resort to them on
considerations of alleged policy because
policy in such matters as those, relating to
the trial of election disputes, is what the
statute lays down. In the trial of election
disputes, Court is put in a straight jacket."

14. The above first principle of
election law was reiterated by the
Supreme Court in Sunil Kumar Kori vs.
Gopal Das Kabra, (2016) 10 SCC 467,
observing that an election petition is not
an action at common law, nor in equity,
but statutory in nature.

15. On 12th May 1950, the
Parliament enacted the Representation of
the People Act, 1950, providing for
allocation of seats in and the delimitation
of constituencies for the purpose of
election to, the House of the People and
the
Legislatures
of
States,
the
qualiifications of voters at such elections,
the preparation of electoral rolls, the
manner of filling seats in the Council of
States to be filled by representatives of
Union Territories, and matters connected
therewith.
In
quick
succession,
on
17.7.1951, the Parliament enacted the
Representation of the People Act, 1951,
providing for the conduct of elections of
the Houses of Parliament and to the
House or Houses of the Legislature of
each
State,
the
qualifications
and
disqualifications for membership of those
Houses, the corrupt practices and other
offences at or in connection with such
elections and the decision of doubts and
disputes arising out of or in connection
with such elections.

16. Section 80 of the Act stipulates
that no election shall be called in
question, except by an election petition,
presented
in
accordance
with
the
provisions of this part. Section 81 of the
Act relates to presentation of election
petition; Section 82 specifies the person
4 All. Tej Bahadur Vs. Sri Narendra Modi
945
who have to be joined in an election
petition; Section 83 prescribes for the
contents of an election petition and it
reads thus: -

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.

17. Section 86 relates to the trial of
election petition by High Court and
Section 87 embodies the procedure to be
followed by High Court in trying an
election petition and reads thus: -

87. Procedure before the High
Court.--(1) Subject to the provisions of
this
Act
and of
any
rules
made
thereunder, every election petition shall
be tried by the High Court, as nearly as
may be, in accordance with the procedure
applicable under the Code of Civil
Procedure, 1908 (5 of 1908) to the trial of
suits:

Provided that the High Court
shall have the discretion to refuse, for
reasons to be recorded in writing, to
examine any witness or witnesses if it is of
the opinion that the evidence of such
witness or witnesses is not material for
the decision of the petition or that the
party tendering such witness or witnesses
is doing so on frivolous grounds or with a
view to delay the proceedings.

(2) The provisions of the Indian
Evidence Act, 1872 (1 of 1972), shall,
subject to the provisions of this Act, be
deemed to apply in all respects to the trial
of an election petition.

18. Section 87 of the Act thus makes
applicable, as nearly as may be, the
procedure provided under the Code of
Civil Procedure to election petition.
Consequently, Order VII Rule 11 C.P.C.
applies to an election petition, filed under
the Act. Order VII Rule 11 C.P.C. reads
thus: -

11. Rejection of plaint -- The
plaint shall be rejected in the following
cases:--

(a) where it does not disclose a
cause of action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;

(c) where the relief claimed is
properly valued, but the plaint is returned
upon paper insufficiently stamped, and
the plaintiff, on being required by the
Court to supply the requisite stamp-paper
946 INDIAN LAW REPORTS ALLAHABAD SERIES
within a time to be fixed by the Court,
fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law :

Provided that the time fixed by
the Court for the correction of the
valuation or supplying of the requisite
stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented
by any cause of an exceptional nature
from
correcting
the
valuation
or
supplying the requisite stamp-paper, as
the case may be, within the time fixed by
the Court and that refusal to extend such
time would cause grave injustice to the
plaintiff.

19. In Azhar Hussain vs. Rajiv
Gandhi, AIR 1986 SC 1253, the
Supreme Court, after considering a catena
of previous decisions on the point, held
that an election petition could be
dismissed summarily in exercise of power
under Order VII Rule 11 C.P.C., if it does
not furnish a cause of action. It would be
advantageous to quote: -

"11.
In
view
of
this
pronouncement there is no escape from
the conclusion that an election petition
can be summarily dismissed if it does not
furnish cause of action in exercise of the
powers underthe Codeof Civil Procedure.
So also it emerges from the aforesaid
decision that appropriate orders in
exercise of powers underthe Codeof Civil
Procedure can be passed if the mandatory
requirements enjoined by Section 83of the
Act to incorporate the material facts in
the election petition are not complied
with. This ............."

"12. Learned counsel for the
petitioner has next argued that in any
event the powers to reject an election
petition summarily under the provisionsof
the Codeof Civil Procedure should not be
exercised at the threshold. In substance,
the argument is that the court must
proceed with the trial, record the
evidence, and only after the trial of the
election petition is concluded that the
powers underthe Codeof Civil Procedure
for
dealing
appropriately
with
the
defective petition which does not disclose
cause of action should be exercised. With
respect to the learned counsel, it is an
argument
which
it
is
difficult
to
comprehend. The whole purpose of
confernment of such powers is to ensure
that a litigation which is meaningless and
bound to prove abortive should not be
permitted to occupy the time of the court
and exercise the mind of the respondent.
The sword of Damocle need not be kept
hanging over his head unnecessarily
without point or purpose."

20.

The
Supreme
Court,
in
Madiraju Venkata Ramana Raju vs
Peddireddigari Ramachandra Reddy,
(2018)
14
SCC
1,
explained
the
difference in scope between Order VII
Rule 11 C.P.C. and Order 14 Rule 2
C.P.C. and thereafter held that an
application under Order 7 Rule 11 CPC
deserves consideration at the threshold -

"24. Ordinarily, an application
for rejection of election petition in limine,
purportedly under Order VII Rule 11 for
non-disclosure of cause of action, ought
to proceed at the threshold. For, it has to
be considered only on the basis of
institutional
defects
in
the
election
petition in reference to the grounds
specified in clauses (a) to (f) of Rule 11.
Indeed, non-disclosure of cause of action
is
covered
by
clause
(a)
therein.
4 All. Tej Bahadur Vs. Sri Narendra Modi
947
Concededly, Order VII of the CPC
generally deals with the institution of a
plaint. It delineates the requirements
regarding the particulars to be contained
in the plaint, relief to be specifically
stated, for relief to be founded on
separate grounds, procedure on admitting
plaint, and includes return of plaint. The
rejection of plaint follows the procedure
on admitting plaint or even before
admitting the same, if the court on
presentation of the plaint is of the view
that the same does not fulfill the statutory
andinstitutional requirements referred to
in clauses (a) to (f) of Rule 11. The power
bestowed in the court in terms of Rule 11
may also be exercised by the court on a
formal
application
moved
by
the
defendant after being served with the
summons to appear before the Court. Be
that as it may, the application under
Order VII Rule 11 deserves consideration
at the threshold."

"45. In Kuldeep Singh Pathania
(supra), the decision of the High Court
which
is
similar
to
one
under
consideration (namely the impugned
judgment) had accepted the explanation
offered
by
the
respondents
and
meticulously dealt with it to conclude that
the petition did not disclose any cause of
action since it lacked material facts. The
High Court passed that order purportedly
in exercise ofpower under Order XIV Rule
2. This Court pointed out the distinction
between an order under Order VII Rule
11 to reject the election petition in limine
for non disclosure of cause of action and
an order under Order XIV Rule 2 for
disposal of the petition on a preliminary
issue. In that case, the order passed by the
High Court was relatable only to Order
VII Rule 11. This Court adverted to the
decisions in Mayar (H.K.) Ltd. and Ors.
Vs. Owners and Parties Vessel M.V.
Fortune Express and Ors. 40 and
Virendra Nath Gautam Vs. Satpal Singh
and Ors.,41 and explicated that under
Order VII Rule 11(a), only the pleadings
of the plaintiff-petitioner can be looked at
as a threshold issue. Whereas, entire
pleadings of both sides can be looked into
for considering the preliminary issue
under Order XIV Rule 2. Neither the
written statement nor the averments or
case pleaded by the opposite party can be
taken into account for answering the
threshold issue for rejection of election
petition in terms of Order VII Rule 11 (a)
of the Act.

46. Whether the material facts
as asserted by the appellant can stand the
test of trial and whether the appellant
would be able to(2006) 3 SCC 100(2007)
3 SCC 617bring home the grounds for
declaring the election of respondent No.1
to be void, is not a matter to be debated at
this stage. Suffice it to observe that the
averments in the concerned paragraphs of
the election petition, by no standard can
be said to be frivolous and vexatious as
such. The High Court committed manifest
error in entering into the tenability of the
facts and grounds urged in support
thereof by the appellant on merit, as is
evident from the cogitation in paragraphs
16 to 22 of the impugned judgment."

21. Again in Ashraf Kokkur vs,
K.V Abdul Khader, (2015) 1 SCC 29,
heavily relied upon by learned counsel for
the election petitioner, the Supreme Court
defined the limits of enquiry under Order
VII Rule 11 C.P.C. as under: -

"22. After all, the inquiry under
Order VII Rule 11(a) CPC is only as to
whether the facts as pleaded disclose a
cause of action and not complete cause of
action. The limited inquiry is only to see
948 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the petition should be thrown out
at the threshold. In an election petition,
the requirement under Section 83 of the
RP Act is to provide a precise and concise
statement
of
material
facts.
The
expression ''material facts' plainly means
facts pertaining to the subject matter and
which are relied on by the election
petitioner. If the party does not prove
those facts, he fails at the trial (see
Philipps v. Philipps and others, (1878) LR
4 QBD 127 (CA); Mohan Rawale v.
Damodar Tatyaba, (1994) 2 SCC 392."

22. Thus, it is clear that an election
petition, which does not disclose 'a cause
of action', has to be dismissed at the
threshold. 'Cause of action' invests the
person with right to sue. When a person
has no interest at all, or no sufficient
interest to support a particular legal claim
or action, he will have no locus standi to
sue. Locus to maintain action in court of
law, is threshold test, an integral part of
cause of action, entitling a person to the
relief claimed. Bereft of locus, no action,
however sacrosanct, could survive. Thus,
a plaint filed by a person having no locus
to maintain the claim is but to be rejected.
In the words of Justice V.R. Krishnaiyer
(T. Arivandandam vs. T.V. Satyapal
(1977) 4 SCC 467) "if on a meaningfulnot formal - reading of the plaint it is
manifestly vexatious, and meritless, in the
sense of not disclosing a clear right to
sue, it should be nipped in the bud at the
first hearing". Order VII Rule 11 C.P.C.
is a tool in the hand of courts to keep
irrespoinsible law suits out of its bounds.

23. A claim which is destined to fail
should be throttled at its very inception.
This is exactly the purpose of investing
courts with the power to reject plaint
itself. No doubt, while exercising the
power under Order VII Rule 11 C.P.C.,
only assertions made in the plaint/petition
have to be seen. If the facts stated can stand
the test of trial, then whether or not plaintiff
will be able to prove his case, is not a matter to
be debated at this stage. On the other hand, if
the case stated in the plaint, even if taken to be
correct, do not disclose any cause of action, or
locus in favour of the plaintiff, it is duty of the
court to nip into bud such a litigation. Keeping
the above broad principles in mind, I now
proceed to examine the issue as to whether the
petitioner has locus to maintain the instant
election petition, or not.

24. The main thrust of the argument
of learned counsel for the respondent is
that the petitioner is neither an elector, nor
a candidate at the election which he seeks
to question, therefore, in view of Section
81 of the Act, he cannot maintain the
election petition. To wit, once the
petitioner is not entitled to maintain the
election petition, he also would have no
cause
of
action.
Consequently,
the
petition is liable to be rejected under
Order VII Rule 11 C.P.C., read with
Section 81 of the Act. Relevant part of
Section 81 reads thus: -

81. Presentation of petitions.--
(1) An election petition calling in question
any election may be presented on one or
more of the grounds specified in subsection (1) of section 100 and section 101
to the High Court by any candidate at
such election or any elector within fortyfive days from, but not earlier than the
date of election of the returned candidate,
or if there are more than one returned
candidate at the election and the dates of
their election are different, the later of
those two dates.

25. Thus, an election petition,
calling in question an election, could be
4 All. Tej Bahadur Vs. Sri Narendra Modi
949
filed only by (i) an elector and/or (ii) by
any candidate at such election. The
Explanation defines the 'elector' as a
person who was entitled to vote at the
election to which the election petition
relates, whether he has voted at such
election or not.

26. The petitioner is enrolled as an
elector from Bhiwani, Mahendragarh
Parliamentary Constituency, Haryana (as
per Form 26, Para 2, page 50 of the
petition). He does not claim to be elector
from
Parliamentary
Constituency,
Varanasi, the election of which is sought
to be challenged. He is thus not covered
by the definition of 'elector'. He however,
claims to be a 'candidate' at such election
and on its strength asserts his locus to
maintain the instant petition.

27. The word 'candidate' is defined
by Section 79(b) thus :-

"(b)
"candidate"
means
a
person who has been or claims to have
been duly nominated as a candidate at
any election;

28. For being a candidate at an
election one has to file nomination in the
prescribed manner. The procedure for
nomination of candidate is provided under
Part V. Ch.1. Section 30 empowers the
Election Commission to issue notification
in the Official Gazette specifying last
dates
for
making
nominations,
for
scrutiny, for withdrawal of candidature,
the date of polling and the date before
which
election shall be completed.
Section 32 stipulates that :-

"32. Nomination of candidates
for election - Any person may be
nominated as a candidate for election to
fill a seat if he is qualified to be chosen to
fill that seat under the provisions of the
Constitution and this Act or under the
provisions of the Government of Union
Territories Act, 1963 (20 of 1963), as the
case may be."

29. Section 33 (so much as is
relevant) reads thus :-

"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
eleven o'clock in the forenoon and three
o'clock in the after noon 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 from 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 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."

(1-A)...............
950 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) In a constituency where any
seat is reserved, a candidate shall not be
qualified to be chosen to fill that seat
unless his nomination paper contains a
declaration
by
him
specifying
the
particular caste or tribe of which he is a
member and the area in relation to which
that caste or tribe is a Scheduled Caste
or, as the case may be, a Scheduled Tribe
of the State.

(3) Where the candidate is a
person who, having held any office
referred to in Section 9, has been
dismissed and a period of five years has
not elapsed since the dismissal, such
person shall not be deemed to be duly
nominated as a candidate unless his
nomination paper is accompanied by a
certificate issued in the prescribed
manner by the Election Commission to the
effect that he has not been dismissed for
corruption or disloyalty to the State.

(4) On the presentation of a
nomination paper, the returning officer
shall satisfy himself that the names and
electoral roll numbers of the candidate
and his proposer as entered in the
nomination paper are the same as those
entered in the electoral rolls :

Provided that no misnomer or
inaccurate
description
or
clerical,
technical or printing error in regard to
the name of the candidate or his proposer
or any other person, or in regard to any
place, mentioned in the electoral roll or
the nomination paper and no clerical,
technical or printing error in regard to
the electoral roll numbers of any such
person in the electoral roll or the
nomination paper, shall affect the full
operation of the electoral roll or the
nomination paper with respect to such
person or place in any case where the
description in regard to the name of the
person or place is such as to be commonly
understood; and the returning officer
shall permit any such misnomer or
inaccurate
description
or
clerical,
technical or printing error to be corrected
and where necessary, direct that any such
misnomer,
inaccurate
description,
clerical, technical or printing error in the
electoral roll or in the nomination paper
shall be overlooked.

(5) Where the candidate is an
elector of a different constituency, a copy
of the electoral roll of that constituency or
of the relevant part thereof or a certified
copy of the relevant entries in such roll
shall, unless it has been filed along with
the nomination paper, be produced before
the returning officer at the time of
scrutiny.

(6) Nothing in this section shall
prevent
any
candidate
from
being
nominated by more than one nomination
paper:

Provided that not more than
four nomination papers shall be presented
by or on behalf of any candidate or
accepted by the returning officer for
election in the same constituency.

(7).........................."

30. Section 33-A makes it obligatory
for a candidate to furnish information
regarding his criminal antecedents etc.
and reads thus :-

"33-A. Right to information.--
(1) A candidate shall, apart from any
information which he is required to
furnish, under this Act or the rules made
thereunder, in his nomination paper
delivered under sub-section (1) or section
33, also furnish the information as to
whether -

(i) he is accused of any offence
punishable with imprisonment for two
years or more in a pending case in which
4 All. Tej Bahadur Vs. Sri Narendra Modi
951
a charge has been framed by the court of
competent jurisdiction;

(ii) he has been convicted of an
offence other than any offence referred to
in sub-section (1) or sub-section (2), or
covered in sub-section (3), of section 8
and sentenced to imprisonment for one
year or more.