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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 07TH DAY OF DECEMBER, 2016

BEFORE

THE HON’BLE Mr. JUSTICE L. NARAYANA SWAMY

ELECTION PETITION NO.12 OF 2013

BETWEEN:

ABRAHAM T.J.
AGED ABOUT 52 YEARS,
S/O JOSEPH T.A.,
NO.2457, 16TH ‘B’ MAIN,
H.A.L., 2ND STAGE,
BANGALORE – 560 008. ... PETITIONER

(BY SRI.ABRAHAM T.J., PARTY–IN-PERSON)

AND:

ASHOK KHENY,
S/O MAHARUDRAPPA,
RESIDING AT NO.2-45
RANJOL KHENY,
BIDAR TALUK, BIDAR DISTRICT.

ALSO AT:

M/S NANDI INFRASTRUCTURE

CORRIDOR ENTERPRISES LIMITED,
NO.1, MIDFORD HOUSE,
MIDFORD GARDENS, OFF M.G.ROAD,
BANGALORE – 560001 ... RESPONDENT

(BY SRI.S.M.CHANDRASHEKAR, SENIOR COUNSEL FOR

SRI.GIRISH G.N, AND S.B.MATHAPATHI, ADVS.)
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THE ELECTION PETITION IS FILED UNDER SECTION 81

READ WITH SECTIONS 100(1) (A) (D) (I) & (IV), 33 (4) & (5),
33-A 36, 5(C) & 9-A OF THE REPRESENTATION OF PEOPLE’S
ACT, 1951 AND ARTICLES 9 AND 173 OF THE CONSTITUTION OF
INDIA, BY ONE SRI.ABRAHAM T.J., PETITIONER: CANDIDATE
(PARTY-IN-PERSON), CHALLENGING OF ELECTION OF THE
RESPONDENT, SRI.ASHOK KHENY TO THE KARNATAKA
LEGISLATURE FROM NO.49, BIDAR (SOUTH) ASSEMBLY
CONSTITUENCY, GENERAL ELECTIONS HELD IN THE YEAR 2013,
PRAYING TO ADJUDGE AND DECLARE THAT THE CONTEST OF
SRI.ASHOK KHENY, RESPONDENT, IS ILLEGAL AND TO THEREBY
SET ASIDE HIS ELECTION AS BEING ILLEGAL, VOID AND OF NO
EFFECT AND ETC.,.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR

ORDERS ON 22.08.2016 ON I A No.IV/2013 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:

O R D E R ON I A No.IV/2013

This Election Petition is filed by one of the defeated

candidates under Section 81 read with Section 100(1)(a)(d) and

(iv), 33(4) & (5) 33-A, 36, 5(c) & 9-A of the Representation of

Peoples Act,1951 and Articles 9 & 173 of the Constitution of

India.

2. The case of the petitioner in brief is that election relates

to 49-Bidar South Assembly Constituency. The respondent

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having voluntarily accepted the citizenship of United States, he is

not a citizen of India and that the respondent having undertaken

the work on behalf or for the Government of Karnataka, the

respondent is not entitled but disqualified to contest the election

in view of the provisions under Articles 9 & 173 of the

Constitution of India and Section 9-A of the Representation of

Peoples Act, 1951, hereinafter referred to as `the Act’ for short.

It is stated acceptance of nomination of the respondent is

improper and that has materially affected the election results of

the petitioner. It is the case of the petitioner that since the

respondent has not denied the averment relating to his

voluntarily accepting the citizenship of U.S. it is to be presumed

that he is not a citizen of India. It is contended that the

business relations of the respondent in USA establishes the fact

that the respondent has voluntarily accepted the citizenship of

USA. The respondent had not specifically denied and willfully

refused to clarify the allegation attracting his disqualification to

contest elections by reason of entering into acontract with the

Government of Karnataka attracting disqualification under

Section 9A of the Act as he is the Managing Director of

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M/s.Nandi Infrastructure Corridor Enterprises Limited(NICE and

also holding shares in M/s.NICE Ltd., which has contracted with

the Government of Karnataka to undertake construction of

Bangalore-Mysore expressway. The respondent has wrongly

sworn to an affidavit that he is a voter at Serial No.673 in Part

No.78 of the Electoral roll of Bidar South Assembly Constituency.

Thus the respondent had earned disqualification under Section

5-C of the Act. Thus the petitioner prayed for declaring the

election of the respondent as void under Section 100(1)(d)(i)

and (iv) of the Act.

3. The respondent has filed written statement inter alia

contending that there is no cause of action to file the petition.

The petition is not in compliance with the mandatory provisions

of the Act and the Code of Civil Procedure. That the issue raised

in the petition that the respondent is not qualified to hold office

to which he is elected since he is not a citizen of India, such an

issue cannot be a ground for disqualification in an election

petition. The petitioner has failed to prove that (i) the State

Government is a Equity Holder in the “NICE” Company; ;and (ii)

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Moreover the respondent as an individual in any manner has

been awarded with any such contracts so as to attract section 9A

of the Act. The respondent is not having a subsisting contract

with the State Government for supply of goods to/execution of

works undertaken by that Government. The issue, respondent

not even an elector in the Bidar South Assembly Constituency,

cannot be a ground of seeking disqualification of the election of

the candidate vide the current election petition. The respondent

does not suffer any disqualification having regard to the scope of

intent of Section 9A of the Act. The result of the election in so

far as the respondent is concerned is not materially affected. It

is submitted that the proceedings before the Returning Officer,

at the stage of scrutiny of nominations under Section 36 of the

Act, contemplate a summary enquiry. This is categorical from

the face of the provision itself. Therefore, it is submitted that

the petitioner’s reliance on Order VIII Rule 3 of the CPC and the

alleged non-compliance therewith resulting in improper

acceptance of the nomination of the respondent is totally

misconceived. Thus the respondent prayed for dismissal of the

election petition.
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4. The respondent filed two applications in the meanwhile

IA No.4/2013 under Order VI Rule 16(a) and (c) of the Code of

Civil Procedure, 1908 to strike off the pleadings contained in

paragraphs 5, 7, 8, 9, 9(a) to (d), 10, 14, 16, 16(a) to (h), 17,

18 and 19 as the same are scandalous, unnecessary, frivolous

and vexatious and I A No.6/2013 under Order VII Rules 11(a)

and (d) r/w Section 151 of Code of Civil Procedure, 1908 praying

to reject the petition on the grounds of non-disclosure of cause

of action and barred by law.

5. Both the applications I A No.IV/2013 and IA No.VI/2013

were directed to be listed for hearing on 24.10.2013. On

24.10.2013 the same were adjourned to 18.01.2014. However,

on 18.1.2014 only IA No.VI/2013 was heard and came to be

disposed of by the coordinate bench, rejecting the said

application filed under Order VII Rule 11 CPC, by the order

dated 8.4.2014.

6. This Court in the order dated 8.4.2014 examined

existence or otherwise of the cause of action in the petition and

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whether the petition is barred by time. In so far as the defects

in mentioning the provisions of law and also the defects in

verifying the affidavit and corrections being not attested etc.,

relying upon the decision in Ponnala Lakshmaiah vs., Kommuri

Pratap Reddy, 2012(7) SCC 788 where the Apex Court referring

to its earlier decision in the case of H.D. Revanna vs., G

Puttaswamy and others, 1999(2) SCC 217 observed that an

election petition can be dismissed for non-compliance of Section

81, 82 and 117ofthe Act but it may also be dismissed if the

matter falls even under Order 6 Rule 16 or Order 7 Rule 11 CPC

and a defect in the verification of the election petition or affidavit

accompanying the election petition is held to be curable and

hence not sufficient to justify dismissal of the election petition.

7. It is further pointed out by this Court that under clause

(a) of Rule 11 of Order 7 the plaint can be rejected where it does

not disclose a cause of action and as per clause (d) a plaint can

be rejected where from the statement in the plaint or the suit

appears to be barred by any law. The election petition was

presented on 22.6.2013. Relying upon decision of the Hon’ble

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Supreme Court in Tarun Prasad Chaterjee Vs., Dinanath

Sharma,2000(8) SCC 649, excluding the date on which the

election result was declared i.e., 8.5.2013, it was held that the

petition presented on 22.6.2013 was within the period of

limitation of 45 days as is prescribed under Section 81 of the

Act.

8. As regards the cause of action, this Court relied upon

Para-3 of the judgment in Ponnala Lakshmaiah’s case referred to

supra, which is extracted herein below for the sake of

convenience:

3….”The expression “cause of action” has acquired

a judicially settled meaning. In the restricted sense
“cause of action” means the circumstances forming
the infraction of the right or the immediate
occasion for the reaction. In the wider sense, it
means the necessary conditions for the
maintenance of the suit, including not only the
infraction of the right, but also the infraction
coupled with the right itself. Compendiously, as
noted above, the expression means every fact,
which it would be necessary for the plaintiff to
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prove, if traversed, in order to support his right to

the judgment of the Court. Every fact, which is
necessary to be proved, as distinguished form
every piece of evidence, which is necessary, to
prove each fact comprises in “cause of action”.

9. This court also took into consideration, Para-6 of the

said judgment, the relevant portion of which is to the following

effect:

“6….Whether a plaint discloses a cause of action or

not is essentially a question of fact. But whether it
does or does not must be found out from reading
the plaint itself. For the said purpose the
averments made in the plaint in their entirety must
be held to be correct. The test is as to whether if
the averments made in the plaint are taken to be
correct in its entirety, a decree would be passed.”

10. This court also observed the observations made

inPara-9 of the judgment, the relevant portion of which is

extracted as herein under:

“9…Rules of pleadings are intended as aids for a

fair trial and for reaching a just decision. An action
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at law should not be equated to a game of chess.

Provisions of law are not mere formulae to be
observed as rituals. Beneath the words of a
provision of law, generally speaking, there lies a
juristic principle. It is the duty of the court to
ascertain that principle and implement it.”

11. In that pragmatic view of the matter and the limited

scope the court had while considering the said application under

Order VII Rule 11 CPC, the court found no substance in the

contention raised in the application filed under Order VII Rule

11 of CPC on the ground of “no cause of action” and opined that

“material facts” are averred in the petition and election petition

cannot be dismissed at the threshold either on the ground that

there is no `cause of action’ or that petition is barred by time.

12. After disposal of IA No.6/2013, the election petition

was entrusted to this court by special orders as my learned

brother Mr.Justice K N Keshavanarayana, retired after attaining

the age of superannuation.

13. Be that as it may, now this court is concerned with I A

No.IV/2013. IA No.IV/2013 was disposed of by the order dated

 11

05.09.2014 allowing the application and consequently rejecting

the election petition itself.

14. The matter was carried to the Hon’ble Supreme Court

by the petitioner herein and the Hon’ble Supreme Court by the

order dated 19.07.2016 in Civil Appeal No.6588/2016 allowed

the appeal, set aside the order dated5.9.2014 and remanded for

adjudication on merits with an observation that reconsideration

is to be done by taking into consideration the order dated

8.4.2014 passed by the High Court.

15. Accordingly, by the order dated 17.8.2016 election

petition was restored to file and IA No.IV/2013 was re-heard.

16. I A No.IV of 2013 was filed by the respondent under

Order VI Rule 16(a) and (c) of the Code of Civil Procedure, 1908

to strike off the pleadings contained in paragraphs 5, 7, 8, 9(a)

to (d), 10, 14, 16, 16(a) to (h), 17, 18 and 19 as the same are

scandalous, unnecessary, frivolous and vexatious and is

otherwise an abuse of process of the court and also its pride.

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17. I have heard the learned Senior Counsel for the

Respondent and petitioner party-in-person.

18. The learned Senior Counsel submits that the pleadings

do not contain material facts with regard to the alleged

voluntarily acquisition or acceptance of US citizenship. The

pleadings also do not contain any material with regard to alleged

contract with Government of Karnataka said to have been

entered into by the respondent for the purpose of supply of

goods or for execution of any work of the Government as

required under Section 9A of the Act. The petitioner ought to

have shown that there is any provision in our law which provides

that a person would automatically lose his Indian citizenship on

his marriage with a person who is a citizen of a foreign country

or by acquiring, even if true, property in a foreign country. In

this regard, the learned Senior Counsel relied upon decision in

Bhagavathi Prasad Dixit Ghorewala vs., Rajiv Gandhi, AIR 1986

SC 1534 Paras 13 & 16.

19. It is submitted that the valuable verdict of the people

at the polls must be given due respect and candour and should
 13

not be disregarded or set at naught on vague, indefinite,

frivolous or fanciful allegations or on evidence which is of a

shaky or prevaricating character. In this regard, decision in D

Venkata Reddy vs., R Sultan & others, AIR 1976 SC 1599 Paras

3& 4 are relied upon.

20. The learned senior counsel relying upon AIR 1975 SC

290 Para-9 (Rahim Khan v. Khurshid Ahamed) submits that an

election once held is not to be treated in a light hearted manner

and defeated candidates are disgruntled electors should not get

away with it by filing election petitions on unsubstantial grounds

and irresponsible evidence, thereby introducing a serious

element of uncertainty in the verdict already rendered by the

electorate.

21. Referring to Order 6 Rule 16 CPC, the learned Senior

counsel submits that at any stage of the proceedings court can

order to be struck out or amend any matter in any pleading,

which may be unnecessary, scandalous, frivolous or vexatious,

which may tend to prejudice, embarrass or delay the fair trial of

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the suit or which is otherwise an abuse of the process of the

court.

22. The learned Senior Counsel has relied upon decision in

Dhartipakar Madan Lal Agarwal Vs., Shri Rajiv Gandhi, AIR 1987

SC 1577 and submits that if the election petition fails to make

out a ground under Section 100 of the Act, it must fail at the

threshold. The emphasis of law is to avoid a fishing and roving

inquiry.

23. Relying upon decision in V. Narayanaswamy vs., C P

Thirunavukkarasu, (2000) 2 SCC 294 Para-23, the learned

Senior counsel advanced the submission that non-compliance

with the provisions of Section 83 may lead to dismissal of the

petition if the matter falls within the scope of Order 6 Rule 16

and Order 7 Rule 11 of the Code of Civil Procedure.

24. It is submitted that the petitioner has resorted to

roving enquiry without placing on record his defence on each of

the allegations. Filing o IA No.1/2014 by the petitioner to

produce documents and to file an affidavit is indicative of the

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fact that he has no personal knowledge and has no certainty

about the allegations made in the petition. Decision in

Basanagouda vs., Amarkhed, (1992) 2 SCC 612 is relied upon to

advance a contention that the election petition proceedings is a

quasi-criminal nature. The allegations in the petition must be

pleaded clearly and with full particulars, especially the grounds

of corrupt practices cannot be permitted to be tried on the basis

of deficient pleadings or by filing applications for production of

record to fish out grounds as material which is not part of the

pleadings. The contentions of the petitioner lack material

particulars and the allegations are bald without specific

materials.

25. It is submitted that the requirement of law is that the

pleadings in the petition should state that acceptance of

respondent’s nomination has prejudicially affected the

petitioner’s prospects in the election. The 2nd highest votes were

secured by one Bandeppa Kashampur with 31975 votes,

whereas the petitioner could secure only 846 votes. The

petitioner has not pleaded in what way or how declaration of

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result or acceptance of nomination has been materially affected.

On this ground, the pleadings in the petition are liable to be

struck off.

26. It is further submitted that the matter relating to

citizenship cannot be construed as pure and simple civil litigation

and deprive the constitutional right of a citizen by declaring that

he is not an Indian citizen by erroneous presumption that non-

denial of allegation amounts to acceptance of US citizenship.

The petitioner is under a misconception of law that the President

or Director of a company registered in the United States of

America requires that he should be a citizen, which is frivolous

and vexatious. The respondent relies upon Indian Passport, PAN

Card, entry in the voters list and Voters ID to substantiate that

he is an Indian Citizen.

27. It is also submitted, no doubt the decision in Hari

Shannkar Jain vs., Sonia Gandhi (2001) 8 SCC 233 Para-20

provides, challenge based on factual matrix given in the petition

can be tried in an election petition but in the absence of such a

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factual matrix, the averments would be merely bald or vague

allegations.

28. It is submitted, the respondent has placed on record

non compliance of mandatory requirement under Section 83

Order 6 Rule 2 and 4 and Section 100(1)(d) of the Act.

Therefore, this Court exercising power under Section 86 and 98A

of the Act strike off pleadings and for non-compliance of

requirement under Section 83 and 100 of the Act and in such a

situation, the election tribunal has power to reject the election

petition even before the trial u/s 86 of the Act notwithstanding

the power under Order 7 Rule 11 CPC.

29. Lastly it is submitted, the parameters for consideration

of applications filed under Order 6 Rule 16 and Order 7 Rule 11

are different. The earlier order dated 8.4.2014 only considered

the basis for cause of action and has not considered whether

allegations are frivolous, vexatious or scandalous or abuse of

process of the Court. Hence the learned Senior Counsel submits

that the pleadings sought to be struck off are frivolous,

vexatious and scandalous liable to be struck off and

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consequently nothing remains in the election petition, liable to

be rejected.

30. On the other hand, the petitioner party-in-person

submits that aspect whether the matter is vexatious, scandalous

or frivolous has been already addressed and settled by this Court

in the order dated 8.4.2014 stating that there was cause of

action to try all the issues raised by the petitioner. Further he

drew the attention of the Court that contentions and grounds

raised in IA No.6/2013 and IA No.4/2016 are similar, this Court

is required to record reasons to take a different view. It is

submitted, he has pleaded “material facts” and material

particulars could be supplied at the time of evidence. It is

submitted that the paragraphs which are sought to be struck off

are held to have disclosed the cause of action to try the election

petition in the earlier order, they cannot be struck off. With

regard to “material Facts” and “material particulars” the

petitioner has placed reliance on decisions in Anil Vasudev

Salgaonkar vs., Naresh Kushali Shigaonkar (2009) 9 SCC 310,

(2009) 10 JT 684, Bimlingshu Roy vs., Kamaalendu

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Bhattacharjee AIR 2004 GUW 107 and D Ramachandran vs., R V

Janakiraman & others (1999) 3 SCC 267, AIR 1999 SC 1128.

31. The petitioner has relied upon decision in Sri Ramu vs.,

Sunil Vallapure & others ILR (2005) Kar. 2823 to advance the

contention as to relevant pleadings and material facts. Thus he

prays for rejection of the application I A No.4/2013.

32. On the basis of the rival contentions, the point that

arises for consideration is, whether the application filed under

Order VI Rule 16 CPC is entitled to be allowed? My answer would

be in the affirmative for the following reasons.

33. First of all it is to be mentioned here that both the

applications ought to have been considered together, but

because of the above reason, it could not happen and that is

how I A No.4/2013 was/is to be disposed of by a separate order.

34. From the contentions advanced on both sides and the

principles enunciated in the various decisions referred to above,

the parameters of the application filed under Order VII Rule 11

and application filed under Order VI Rule 16 of CPC are different.

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Disposal of IA filed under Order VII Rule 11 CPC would not come

in the way of disposing of the application filed under Order VI

Rule 16 CPC. It is at this stage, beneficial to extract the two

provisions Order VII Rule 11 and Order VI Rule 16 CPC, which

are as follows:

“Order VII Rule 11 CPC.

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 written upon paper insufficiently stamped, and
the plaintiff, on being required by the Court to supply
the requisite stamp-paper 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;

Order VI Rule 16 CPC.

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16. Striking out pleadings.- The court may at any stage

of the proceedings order to be struck out or amended any matter
in any pleading-

(a) which may be unnecessary, scandalous, frivolous or

vexatious, or

(b) which may tend to prejudice, embarrass or delay the

fair trial of the suit, or

(c) which is otherwise an abuse of the process of the

Court.”

35. Therefore, the court is empowered to strike off the

pleadings at any stage of the proceedings if it finds that the

pleadings are unnecessary, scandalous, frivolous or vexatious, or

which may tend to prejudice, embarrass or delay the fair trial of

the suit, or which is otherwise an abuse of the process of the

Court. The circumstances under which the plaint shall be

rejected are quite different from the circumstances enumerated

for striking off the pleadings. While considering the application

under Order VI Rule 16 CPC for striking off the pleadings,

pleadings being unnecessary, scandalous, frivolous or vexatious

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and if it is otherwise an abuse of process of the court, the court

gets jurisdiction to strike off the pleadings. Thus it could be

noticed that scope of application under Order VI Rule 16 CPC is

more than that of the application under Order VII Rule 11 CPC.

36. The pleading if it does not meet the requirement of the

allegation made in the petition, it is an unnecessary pleading.

The pleading which is insufficient to resolve the issue in the

petition renders the pleadings frivolous, i.e., of little weight or

importance. The pleading consisting of accusations by the

complainant intending to cause annoyance to the person accused

and not merely to further the ends of justice renders the said

pleading vexatious. A pleading is said to be scandalous, if it

alleges anything unbecoming the dignity of the Court to hear, or

is contrary to good manners or which charges a crime immaterial

to the issue. But the statement of a scandalous fact that is

material to the issue is not a scandalous pleading.

37. It is the specific case of the petitioner that the

respondent suffered disqualification to contest the election on

the ground that he is not a citizen of India on voluntarily

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accepting the citizenship of U.S.A. It is his further case that

name of the respondent does not find a place in the voters list of

49-Bidar South Assembly Constituency at Serial No.673 as

stated by the respondent in the nomination paper. It is stated

the respondent having entered into BMIC contract of profit with

the Government of Karnataka, he suffered disqualification under

Section 9-A of the Act. It is contended that in view of the above,

acceptance of nomination of the respondent is improper and it

has materially affected the election of the respondent.

38. First of all the issue relating to citizenship is a question

which has to be decided by the appropriate authority, the

Central Government and it cannot be the subject matter before

different forums is the law laid down in Bhagavathi Prasad Dixit

Ghorewala’s case referred to supra. Para 11, 13 & 16 of the

judgment are extracted for better appreciation.

“11. …The authority prescribed under the

Citizenship Act, 1955 alone can decide the
questions arising under S.9(2) and the rules of
evidence which should govern that decision shall be
those prescribed for the purpose under that Act. …
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For purposes of deciding the question arising under

S.9(1) of that Act, the Central Government by
virtue of the power conferred on it by S.9(2) has
been given an exclusive power to determine in
accordance with the rules of evidence provided for
the purpose whether a person has acquired the
citizenship of another country. It follows that when
once a person is admitted or held to be citizen of
India, unless there is a decision of the Central
Government under S.9(2) of the Citizenship Act,
1955 that he has acquired the citizenship of a
foreign country, he should be presumed to be an
Indian citizen…. The policy behind S.9(2) appears
to be that the right of citizenship of the person who
is admittedly an Indian citizen should not be
exposed to attack in all forums in the country, but
should be decided by one authority in accordance
with the prescribed rules and that every other
Court or authority would have to act only on the
basis of the decision of the prescribed authority in
that behalf and on no other basis.

13. Even granting that the High Court had

jurisdiction to decide the said question it is seen
that the allegations made in the election petition
regarding acquisition of citizenship of a foreign
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country by the respondent were wholly inadequate

to record any finding in favour of the appellant
since it is not shown that there is any provision in
our law which provides that a person would
automatically lose his Indian citizenship on his
marriage with a person who is a citizen of a foreign
country or by acquiring, even if true, property in a
foreign country.

16. On going through, all the grounds mentioned in

the petition, we feel that they are so frivolous and
vexatious that the only order to be passed on the
petition is one which has been made by the Hon’ble
Court”.

39. It is true in the decision reported in (2001) 8 SCC 233

Para-20 (Hari Shannkar Jain vs., Sonia Gandhi) challenge to the

citizenship can be the subject matter provided the challenge is

based on factual matrix given in the petition and not merely bald

or vague allegations. The petitioner has failed to provide the

provisions of law which provides that a person would

automatically lose his Indian citizenship on his voluntarily

accepting the citizenship of U.S.A. When and how the

respondent voluntarily accepted the citizenship of U.S.A is not

 26

provided in the pleadings. This inadequacy of the pleadings

renders the pleadings frivolous and vexatious. It is only based on

the assumption and presumption of the petitioner that

respondent being President or Director of some of the companies

in U.S.A. requires citizenship of U.S.A. thereby he ceases to be

an Indian citizen, which is not correct.

40. Further the agreement entered into by Nandi

Infrastructure Corridor Enterprises Limited for execution of

BMICP with the Government of Karnataka does not attract

disqualification under Section 9A of the Act for the simple reason

that the respondent is not the beneficiary in the said contract.

BMICP is conceived and implemented on “Build, Own, Operate,

Transfer” (BOOT) basis. There is no financial investment by the

State of Karnataka. The Framework Agreement dated 3.4.1997

is not signed by the respondent and execution of BMICP is not

the work undertaken by the State Government and that Nandi

Infrastructure Corridor Enterprise Limited is a distinct and

separate legal entity in the eye of law. Hence on the available

materials, it cannot be said that the respondent has suffered

 27

disqualification under Section 9-A of the Act rendering the

pleadings in paras 5, 9(d), 16(e), (f) and 19 as frivolous and

vexatious.

41. It is already held in the order dated 8.4.2014 while

considering IA No.6/2013 in Para-19 of the order that there

appears to be no serious dispute, as even according to

respondent, there had been a mistake in that regard as he was

guided by the particulars furnished in the voters I.D. card and

that his name is found at a different serial number. Question as

to whether these pointed defects constitute defects of substantial

character, will have to be decided at trial. In Brij Mohan vs.,

Satpal (1985) 3 SCR 321 the Apex Court has held that “it is not

possible to say generally and in abstract that all errors in regard

to electoral roll numbers of the candidate and the proposer in

the electoral rolls or nomination papers do not constitute defects

of a substantial character”. Therefore, for the limited purpose of

considering IA No.6/2013, the pointed defects whether

constitute substantial character, court said, will have to be

decided at the trial. As the things stand, the name of the

 28

respondent found at different serial No.693 and therefore the

said defect cannot constitute a defect of substantial character.

42. The averments in election petition paras 16©, (g) and

(h) and 19 relate to acceptance of nomination of the respondent

in violation of Section 5C of the Act. Section 36 of the Act deals

with scrutiny of nominations, which is reproduced herein under:

“36. Scrutiny of nominations:

(4) The returning officer shall not reject any

nomination paper on the ground of any defect which
is not a substantial character.”

43. The proceedings of scrutiny of nominations and

acceptance or rejection of nomination by the Returning Officer is

a summary proceeding. The Returning Officer has placed

reliance on the Indian Passport, PAN Card, Entry in the Voters

List and Voters ID Card of the respondent and accepted the

nomination paper of the respondent. No fault can be found in

such summary exercise of power by the Returning Officer and

acceptance of nomination of the respondent by the Returning

Officer cannot be said to be improper.

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44. It is the case of the petitioner that improper

acceptance of nomination of the respondent has materially

affected the election result of the returned candidate. The

petitioner is admittedly not the second highest in the number of

votes secured in the election. The petitioner has secured 846

votes as against 47,763 votes secured by the respondent. The

2nd highest votes were polled in favour of one Bandeppa

Kashampur with 31,975 votes. It is requirement of law that the

pleadings in the petition should state that acceptance of

respondent’s nomination has prejudicially affected the

petitioner’s prospects in the election. The petitioner has failed to

plead in what way or how declaration of result or acceptance of

nomination has been materially affected. Without such

pleadings, there is no basis for adjudication warranting

interference in the declaration of the result. In this regard, it is

beneficial to refer to the ratios laid down in the following

decisions:

(i) AIR 1954 SC 513 Para-11 (Vashista Narain Sharma

vs., Dev Chandra & Ors).
 30

“11. …. We are of the opinion that the language of

Section 100(1)© is too clear for any speculation
about possibilities. The section clearly lays down
that improper acceptance is not be regarded as fatal
to the election unless the Tribunal is of opinion that
the result has been materially affected….”

(ii) AIR 1988 SC 637 Para-9 & 11 (Shivacharan Singh

Vs., Chandra Bhan Singh & Ors).

“9….The result of the election can be affected only on

the proof that the votes polled by the candidate
whose nomination paper had wrongly been accepted
would have been distributed in such a manner
amongst the remaining candidates that some other
candidate (other than the returned candidate) would
have polled the highest number of valid votes. In
other words the result of the election of the
candidate cannot be held to have been materially
affected unless it is proved that in absence of the
candidate whose nomination paper was wrongly
accepted in the election contest, any other candidate
whose nomination paper was wrongly accepted in
the election contest, any other candidate (other than
the returned candidate) would have polled the
majority of valid votes….”
 31

11. ….It is difficult to comprehend that the majority

of the voters who exercised their choice in favour of
Kanaiya Lal would have voted for the next candidate
Roshan Lal. It is not possible to forecast how many
and in what proportion the votes would have gone to
one or the other remaining candidates and in what
manner the wasted votes would have been
distributed among the remaining contesting
candidates. In this view, the result of the returned
candidate could not be declared void on the basis of
surmises and conjectures.”

45. The petitioner having failed to plead as to how he

could have polled how many number of votes out of the votes

secured by the returned candidate and how his election

prospects could have bettered or surpassed the returned

candidate. Election litigation and for that matter any litigation

must be purpose oriented. Challenge to the election shall not be

just for the sake of challenge. The petitioner having secured less

than 100 votes as against quite good number of votes secured

by the returned candidate having failed to plead how he could

have bettered than the returned candidate or the candidate who

has secured second highest number of votes, is nothing but

 32

rendering the election petition filed by the petitioner as abuse of

process of the Court. In this connection it is profitable to refer

relevant portion of Para-32 of the judgment in Dhartipakar

Madanlal Agarwal Vs., Shri Rajiv Gandhi, AIR 1987 SC 1577

which is as follows:

“32. …. Some independent individuals contest

election genuinely and some of them have
succeeded also but experience has shown that a
large number of independent candidates contest
the elections for the mere sake of contesting, with
a view to make out grounds for challenging the
election. Presence of number of independent
candidates results in confusion, for the millions of
the illiterate and ignorant electors who exercise
their electoral rights on the basis of `symbols’
printed on the ballot papers. The presence of large
number of independent candidates makes the ballot
paper of unmanageable size and ordinarily elector
is confused in the election booth while exercising
his franchise. This leads to confusion. In the
instant case, out of 14 candidates who contested
the election 11 of them including the appellant
contested as independent candidates and they are
all polled only paltry number of votes. This shows
 33

the genuineness of the candidature of independent

candidates.”

46. The petitioner filed I A No.1/2014 seeking for

production of document and direction to the respondent to file

affidavit. This itself shows the petitioner does not possess

requisite material and has no personal knowledge. The

petitioner intends to fish out evidence and indulge in roving

enquiry which is not permissible. The averments made in IA

No.1/2014 makes it clear to record a finding that the contentions

are frivolous, vexatious, scandalous, unnecessary and bereft of

sufficient materials. Hence the pleadings contained in paras 5,

7, 8, 9, 9(a) to (d), 10, 16, 16(a) to (h), 17, 18 and 19 are

without any basis, vexatious, scandalous and improper and are

liable to be struck off. There are no bona fides on the part of the

petitioner in filing the election petition.

47. In the circumstances, I am of the view that the

respondent has made out a case for striking off the pleadings as

sought for. Accordingly, I A IV/2013 is allowed. Consequent

thereupon, there remains nothing to be considered in the

 34

election petition and accordingly, the election petition is also

rejected.

The statutory deposit towards cost is directed to be paid to

the respondent.

Sd/-
JUDGE
akd