Khan Mohammed Arif Lallan Alias ... vs Dilip Bhausaheb Lande And 14 Ors 2022 Latest Caselaw 461 Bom

Bombay High Court Khan Mohammed Arif Lallan Alias ... vs Dilip Bhausaheb Lande And 14 Ors on 13 January, 2022 Bench: S. K. Shinde Digitally signed by SHAMBHAVI E P-27-2019.odt SHAMBHAVI NILESH NILESH SHIVGAN SHIVGAN Date: 2022.01.13 18:19:57 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION (L) NO.20734 OF 2021 IN ELECTION PETITION NO.27 OF 2019 ALONGWITH APPLICATION (L) NO.17416 OF 2021 Dilip Bhausaheb Lande, ...Applicant IN THE MATTER BETWEEN Khan Mohammed Arif Lallan alias Mohammed Arif (Naseem) Khan Aged 56 years, residing at Rani Plaza, Shamsuddin Nagar, Jari Mari, Kurla Andheri Road, Sakinaka, Mumbai-400072 ...Petitioner Vs 1) Dilip Bhausaheb Lande An adult inhabitant of India Residing at Avesh Sandesh Bhawan, Shivaji Maidan, Kaju Pada, Kurla (W), Mumbai 400 072 2) The Returning Officer, An adult inhabitant of India, 168, Chandivali Assembly Constituency, I.T.I. New Building, Kirol Road, Vidyavihar Shivgan 1/33 E P-27-2019.odt (West), Mumbai-400086 3) Sumit Pandurang Baraskar, An adult inhabitant of India, Residing at A-10, Achanak Housing Society, Satyanagar, Andheri-Ghatkopar Link Road, Kurla (West), Mumbai-400062 4) Abdul Hasan Khan, An adult inhabitant of India, Residing at Sabeena Apartment, Flat No.101, A-Wing, First Floor, Netaji Palkar Marg, Ghatkopar West, Mumbai-400084. 5) Brijesh Surendranath Tiwari, An adult inhabitant of India, Residing at Room No.6, Matrachaya Hsg. Soc., L.B.S. Nagar, Andheri-Ghatkopar Link Road, Sakinaka, Mumbai-400072. 6) Mohd. Iran Qureshi, An adult inhabitant of India, Residing at Jai Hind Mutton Shop, Unwala Compound, Kurla-Andheri Road, Jarimari, Mumbai-400072. 7) Sirajuddin Hafizullah Khan, An adult inhabitant of India, Residing at A-22, Noor Manjil, L.B.S.Marg, Near Skyway Hotel, Kurla (West), Mumbai-400070 8) Sunil Baburam Shukla An adult inhabitant of India, Shivgan 2/33 E P-27-2019.odt Residing at 203/204, Samarth Sampada, Lokhandwala Back Road, Andheri, Mumbai-400052 9) Shri Machindra Krisna Kothare, An adult inhabitant of India, Residing at Kala Killa, Shivner Tarun Mitra Mandal, Sandesh Nagar, Bailbazar, Kurla (West), Mumbai-400070. 10) Mamta Subhrhanshu Dixit An adult inhabitant of India, Residing at 504, Panchratna Co-op. Hsg. Soc., Asalpha Village, N.S.Road, Ghatkopar (West), Mumbai-400084. 11) Mohammed Mobin Mohammed Islam Shaikh An adult inhabitant of India, Residing at Sanjay Nagar, Hill No.03 Sunder Baug Lane, Near Sai Baba Chawk, Kamani, Kurla (West), Mumbai-400070 12) Mohammed Hasan Shaikh, An adult inhabitant of India, Residing at Sanjay Nagar, Room No.2, Prahlad Chawl, Vijay Nagar, Jarimari, Kurla-Andheri Road, Kurla (West), Mumbai - 400072 13) Sandeep Ramchandra Jadhav, An adult inhabitant of India, Residing at Jadhav Niwas, Rupali Chawl Committee, Walmik Nagar, Opp: Himalaya Shivgan 3/33 E P-27-2019.odt Society, N.S.S. Road, Asalpha Village, Ghatkopar (West), Mumbai-400084. 14) Hajrat Sardar Pathan Mulani An adult inhabitant of India, Residing at Room No.246, Indira Nagar Zopadpatti, Jarimari, Kurla-Andheri Road, Kurla (West), Mumbai-400072 15) Harshwardhan Pandey, An adult inhabitant of India, Residing at 606, 17, A/C Amardeep Hsg. Soc., Sangharsh Nagar, Chandivali Farm Road, Andheri (East), Mumbai 400 072 ... Respondents ... Mr. Girish Godbole, Senior Counsel with Mr. Aman Kacharia, Ms. Vedanshi Shah i/by Mr. Bipin Joshi for the Petitioners. Mr. Shardul Singh i/by Mr. Sandesh D. Inamdar-Shinde and Mr. B.A.Lawate for the Respondent No.1. CORAM : SANDEEP K. SHINDE J. RESERVED ON : DECEMBER 23, 2021. PRONOUNCED ON: JANUARY 13, 2022 JUDGMENT : Shivgan 4/33 E P-27-2019.odt 1 The short question, which falls for consideration in this case is, whether the Election Petition is liable to be dismissed for want of "material facts". 2 The position in law is, well-settled that an election petition can be summarily dismissed, if the mandatory requirements of Section 83 of the Representation of the People Act 1951 (hereinafter referred to as the 'Act') to incorporate, material facts, in Election Petition are not complied with. 3 The facts in, brief are that respondent no.1 was declared, elected as the member of legislative assembly (for short MLA) in the election held on 21 st October, 2019 (the 'Said Election', for short). Petitioner filed petition for declaration, that the election of the respondent no.1 is void Shivgan 5/33 E P-27-2019.odt and deserves to be set aside, as he committed corrupt practices as specified in part III of Chapter VII of the Representation of Peoples' Act, 1951. 4 The Election Commission of India declared general elections for the 2019 assembly constituency of the State of Maharashtra by Notification 27th September, 2019. The date of scrutiny of nomination papers was 8 th October, 2019. The date of election was 21 st October, 2019. The result of the said election was declared on 24 th October, 2019. 5 The alleged corrupt practices, which returned candidate, indulged into are as under: (a) Petitioner came across concocted and doctored video on What'sapp, on or about 8th October, 2019, wherein speech delivered by him in 2016 was deliberately and maliciously edited to portray him as an anti-national person Shivgan 6/33 E P-27-2019.odt as shown, giving slogans 'Pakistan Zindabad'. The said fake video was circulated by the returned candidate on social media from 14th October, 2019 till 21st October, 2019. The said fake video was seen by large number of people of his assembly constituency. (b) That, the returned candidate, his agent or other persons on his behalf including the leader of party of respondent no.1, Shri Uddhay Thakarey addressed the public meeting and was part of the procession in connection with the said election on 20th October, 2019 at 9.15 p.m., which was within the period of 48 hours prior to the hours fixed for conclusion of poll, which was prohibited in terms of Section 126 of the said Act and thereby violated Clause 8.2.1 of Chapter VIII of the Model Code of Conduct, framed by the Election Commission. As a consequence, returned candidate deliberately acted in contravention of Section 126 of the said Act, and committed acts, which fall within the mischief of Section Shivgan 7/33 E P-27-2019.odt 100(1)(d)(v) of the Said Act. 6 The petitioner would assert and claim that the false and doctored video was downloaded, by Vinod Purshottam Chhatpal, from the facebook account of Mr. Budol. Vinod Purshottam Chhatpal gave CD of doctored video to the petitioner. Whereafter, Petitioner's chief election agent lodged a written complaint. Afterwhich Saki Naka Police Station registered FIR dated 14th October, 2019 under Section 125 and 171-G of the Indian Penal Code, 1860 against Mr. Budol. Petitioner would further assert that, the members of Rajputana Community of his Assembly Constituency consisting of 10,000 voters believed the version of the said fake video clips and issued legal notice to the petitioner on behalf of Akhand Rajputana Sevasangh through their advocate on 17th October, 2019. Shivgan 8/33 E P-27-2019.odt Pleadings of Corrupt Practice relating to circulation of fake video 7 In paragraph 12 of the Election Petition, petitioner averred that; "in the circumstances mentioned hereinafter, it was revealed that the said fake video clip was published by the returned candidate as he was the only beneficiary of the outcome of the circulation of such false and fake video. Petitioner would, therefore, allege that purpose of circulating fake, false and malicious news was to defame the petitioner and to paint him as an anti-social or anti-national person to deter the voters from voting in favour of the petitioner." 8 On the grounds afore-stated, petitioner is seeking a declaration that the election of the respondent no.1 as a Member of Maharashtra State Legislative Assembly from the constituency no.168 Mumbai Suburban District held on 21 st Shivgan 9/33 E P-27-2019.odt October, 2019 is null and void and also seeks declaration that he be declared, as elected. Application under Order 7 Rule 11(a)(b) of the CPC: 9 The respondent-returned candidate moved an application seeking dismissal of the Election Petition, under Order 7 Rule 11 (a) and (b) of the Civil Procedure Code, 1908 ('CPC' for short) on the ground that the petition does not disclose the, cause of action, for want of 'material facts', relating to Corrupt Practices. 10 Petitioner opposed the application vide reply dated 23rd September, 2021. 11 Heard Mr. Shardul Singh, the learned counsel for the petitioner and Mr. Girish Godbole, the learned senior counsel for the respondent no.1. Shivgan 10/33 E P-27-2019.odt 12 Mr. Singh the learned counsel for the applicant/returned candidate, made the following submissions: (i) the averments, in paragraph 12 of the Petition, that the returned candidate circulated the Fake Video on social media, is imprecise, generalised and bereft of the circumstances relating to material facts and therefore, petition is not containing statement of "material fact". (ii) although in paragraph no.12, petitioner averred that in the upcoming paragraphs, he would narrate the circumstances to show, as to how returned candidate indulge into circulating Fake Video; yet no such circumstances have been narrated, except vague allegations. (iii) absolutely, there are not averments-pleadings, showing and/or suggesting nexus between Mr. Budol (from whose face-book account Fake Video was downloaded) and the returned candidate to infer that Mr. Budol provided Shivgan 11/33 E P-27-2019.odt Fake Video to returned candidate or to his agent. (iv) "Source of Fake-Video" at the hands of returned candidate has not been pleaded at all. (v) absence of pleadings, as to link between Mr. Budol and returned candidate and in absence of pleadings as to source of Fake Video in the hands of returned candidate, amounts to omission of 'Material Facts', on which reliance is sought to be placed. (vi) So far as, the offences in relation to breach of Model Code of Conduct are concerned, according to Mr. Singh, the petitioner has not pleaded at all, that, result of election so far as it concerns returned candidate had been materially affected by alleged non-compliance of the 'Orders' made under the Act. (vii) That the pleadings in the Election Petition do not disclose and/or even suggest as to how the alleged breach of Model Code of Conduct has materially affected result of the returned candidate. Shivgan 12/33 E P-27-2019.odt (viii) That omission of single 'material fact' would lead to, incomplete cause of action and that Election petition without the 'material facts' relating to corrupt practice is not a Election Petition. In support of the submissions, Mr. Singh has relied on the following judgments: (1) Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310; (2) C.P.John v. Babu M. Palissery and Others; (2014) 10 SCC 547; (3) V. Narayanaswamy v. C.P. Thirunavukkarasu; (2000) 2 SCC 294; (4) Samant N. Balkrishna and Anr. v. George Fernandez and Others 1969(3)SCC 238; (5) Dr. Rameshkumar Bapuraoji Gajbe v. Election Commission of India, New Delhi and Others [2020(5)Mh.L.J.328]; (6) L.R.Shivaramagowda and Others v. T.M.Chandrashekar Shivgan 13/33 E P-27-2019.odt (Dead) by LRS and Others; (1999) 1 SCC 666 (7) Mangani Lal Mandal v. Bishnu Deo Bhandari; (2012) 3 SCC 314; (8) Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541; (9) Ashok s/o Mahdeorao Mankar v. Rajendra Bhausaheb Mulak 2010(7) Mh.L.J.503. 13 Per contra, Mr. Godbole, the learned Senior Counsel for the Election Petitioner would argue that averments in the petition, contained, not only 'material facts' but also 'material particulars'. Mr. Godbole by relying on the judgment of the Apex Court in the Sardar Harcharansingh Brar v. Sukhdarshan Singh 2004(11) SCC 196 would contend, that it is not requirement of law to plead evidence or minute details of the corrupt practice. Mr. Godbole vehemently submitted, if pleadings on reasonable construction would sustain the action, the Court should accept that construction. Further, Mr. Godbole relied Shivgan 14/33 E P-27-2019.odt on the judgment of the Supreme Court in the case of Raj Narayan v. Indira Nehru Gandhi 1972 (3) SCC 850 to submit, that pleadings averred in paragraphs 7 to 12 of the petition, if taken and read conjointly, would disclose all basic and fundamental facts, as to constitute corrupt practices, which returned candidate indulged into by circulating fake video on the social media. Mr. Godbole, submitted, details of the link between Mr. Bodul (from whose face-book account, fake video was downloaded) and the returned candidate or his agent were not required to be particularised, as the link could be established, by leading evidence in the trial and, therefore, such evidentiary facts or details or its' particulars were not required to be pleaded. In the alternative, Mr. Godbole submitted, if the allegations regarding the corrupt practice did not disclose essential part, of corrupt practice, the Court may allow particulars of any corrupt practice alleged in to be amended or amplified. Mr. Godbole, the learned Senior Counsel Shivgan 15/33 E P-27-2019.odt would, therefore, rely on the provisions of Section 86(5) of the Act to contend that if this Court is of the opinion that full, "particulars", of the corrupt practice have not been set out, petitioner be given an opportunity to amend or amplify the particulars. Mr. Godbole, would, therefore, urge that application moved by the returned candidate under Order 7 Rule 11 of the CPC be rejected. 14 The primary issue in this case is, whether Election Petition discloses complete cause of action. 15 The word 'Material facts', in the context of the charge of corrupt practice would, mean basic facts constituting ingredients of particular corrupt practice. Settled law is that, all the material facts must be pleaded by the party in support of the case. The object, is to enable the opposite party to know the case he has to meet with. That omission to plead single 'material fact' leads to Shivgan 16/33 E P-27-2019.odt incomplete cause of action and statement of claim becomes bad as held by the Hon'ble Supreme Court in the case of Samant N. Balkrishna (Supra). To, ascertain, whether petitioner has omitted to plead material facts, I have gone through the pleadings in the Petition. 16 Petitioner, pleads in paragraph 7, that he came across video clip on the What's app on or about 8 th October, 2019, i.e., twelve days before polling day. He had noticed that, his speech was deliberately and maliciously edited to portray him as 'anti-national person, shouting "Pakistan Zindabad". According to the petitioner, speech delivered by him in May, 2016 was deliberately distorted by maliciously editing the same into the fake video. That video was downloaded by Shri Vinod Purshottam Chhatpal and copied in CD from face-book account of Mr. Budol. In paragraph 8, petitioner pleaded, the fake video was Shivgan 17/33 E P-27-2019.odt circulated on social media from 14 th October, 2019 till 21st October, 2019 showing petitioner uttering "Pakistan Zindabad". The said video went viral. As a result, the petitioner was bombarded with questions relating to fake speech, from press and voters from the constituency. In paragraph 9, petitioner pleaded, that his Chief Election Agent lodged the complaint dated 8th October, 2019 to the local police station; after which First Information Report was registered on 14th October, 2019 against Mr. Bodul. In paragraph 10, petitioner pleaded, as to how fake video has influenced voters in constituency. In paragraph 11, the petitioner pleaded that various newspapers and electronic media, after ascertaining the correct facts, published news relating to said fake video. 17 It, therefore, follows that in paragraphs 7 to 11, the petitioner has neither pleaded, that his speech was deliberately edited by returned candidate or his agent nor Shivgan 18/33 E P-27-2019.odt pleaded that fake video was circulated on social media by the returned candidate or his agent nor he pleaded the nexus between Mr. Bodul and the returned candidate or link between Mr. Bodul and agent of the returned candidate. For all that, in paragraph 12, petitioner pleaded, that by letter dated 8th October, 2019, he made complaint to Returning Officer, against Mr. Bodul for taking appropriate action including registering cyber crime against him. Be it noted, even the complaint, does not imply or suggest or show the connection between Mr. Bodul and returned candidate. Having said that in the same paragraph (Paragraph No.12), petitioner averred; that "in the circumstances mentioned hereinafter, it is revealed that said fake video was published by the returned candidate (emphasis supplied) as he was the only beneficiary of the outcome of the circulation of such false and malicious news, which did not only tarnish the image of the petitioner in the eyes of the public but prejudiced the Shivgan 19/33 E P-27-2019.odt minds of the voters and the sole purpose of circulating the fake and false news was to defame the petitioner and to paint him as an 'anti-social' or 'anti-national' person to deter the voters from voting in favour of the petitioner." Be it noted that neither in paragraph 12 nor in the subsequent paragraphs, petitioner averred or pleaded the 'circumstances', (emphasis supplied) wherefrom he gathered and/or inferred that the returned candidate circulated the Fake Video. Therefore, allegations that returned candidate circulated the fake video, to malign petitioner's reputation, were vague and indefinite for want of related facts. As a matter of fact, petitioner has not pleaded foundational facts, like source, wherefrom the Fake Video was procured by the returned candidate. For that reason, in absence of pleadings as to source of video at the hands of the returned candidate and in absence of pleadings as to reveal link between Mr. Bodul and returned candidate, it cannot be said that petition was containing concise statement of Shivgan 20/33 E P-27-2019.odt "material facts". On the contrary, pleadings in paragraph 12, that the petitioner circulated the Fake Video, are vague, uncertain and made in casual manner. 18 Section 83 of the act, speaks of contents of the petition. Clause (a) of Sub-section (1) of Section 83 states, that an Election Petition shall contain a concise statement of material facts on which the petitioner relies upon; Whereas, Section 100 of the act spells out, grounds for declaring the election to be void. Clause (b) of Sub-section (1) of Section 100 states, "if the Court is of the opinion, that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, the Court shall declare the election of the returned candidate to be void." The expression "Opinion" means, view point, belief or point of view or impression. That being the case, to form an opinion that corrupt practice has Shivgan 21/33 E P-27-2019.odt been committed by the returned candidate, petition must contain concise statement relating to corrupt practice. Indisputably, petition neither reveals as to how and from whom, the returned candidate procured the Fake Video nor the pleadings reveal, connection or link between Mr. Budol and the returned candidate. Therefore, in absence of these fundamental Pleadings, Court is unable to form 'opinion' as to complicity of the returned candidate in committing the corrupt practices, envisaged under Section 83(1)(a) of the Act. 19 Mr. Godbole, the learned Senior Counsel rightly argued, that, whether a particular fact is 'material' or not and as such, required to be pleaded, is dependent on the nature of charge levelled and the circumstances of the case. Still, in the case in hand, absence of pleadings as to, link between Mr. Bodul and the returned candidate and as to source of Fake Video at the hands of the returned Shivgan 22/33 E P-27-2019.odt candidate, leads me to hold, that Petition does not disclose 'complete cause of action'. Now, let me refer to few rulings, on the subject i.e. which facts are material and what constitutes 'material facts'; necessity to plead and effect of non-pleadings. In the case of Anil V. Salgaonkar (Supra), the Hon'ble Apex Court has held in paragraphs 57, 58 and 60 as under: "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. Shivgan 23/33 E P-27-2019.odt 60. According to the appellant, in the election petition, there was no averment whether the bore wells were dug with the consent and/or active knowledge of the appellant. This averment was absolutely imperative and the failure to mention such an important averment in the petition is fatal for the election petitioner (the respondent herein) and the election petition is liable to be summarily dismissed on that ground. " . In the case of C.P.John (Supra), the Hon'ble Supreme Court has analysed Section 83 of the Act and held in paragraph 18; "18. When we read Section 83, the substantive part of Section 83(1) consists of three important elements, namely, that an election petition should contain a concise statement of material facts which an election petitioner relies upon. The emphasis is on the material facts which should be stated in a concise form. Under Section 83(1)(b) it is stipulated that the election petition should set forth full particulars of any corrupt practice which is alleged by the petitioner. A reading of the said Section 83(1)(b) is to the effect that such particulars should be complete in every respect and when it relates to an allegation of corrupt practice it should specifically state the names of the parties who alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, the particulars relating to corrupt practice should not be lacking in any respect. One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as the names of the persons, the nature of the alleged corrupt practice indulged in by such person or persons, the place, the date, the time Shivgan 24/33 E P-27-2019.odt and every other detail relating to the alleged corrupt practice." 20 In the case of V. Narayanswamy (Supra), , the Hon'ble Apex Court has ruled on "Source of information in respect of commission of Corrupt Practices; "23.........For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non- compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub- section (1) of Section 83. Then under clause (b) of sub- section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and Shivgan 25/33 E P-27-2019.odt which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail." 21 Thus, law enunciated by the Hon'ble Apex Court in the aforesaid authorities is, that facts, which are essential to disclose a complete cause of action, are 'material facts' and are essentially required to be pleaded. Likewise, ruled that Petition levelling charge of Corrupt Practice, is required by law, to disclose his source of information in respect of commission of Corrupt Practice. The Three Judge Bench in Mahendra Pal 2001 SCC 261 has ruled that; (i) function of 'particulars', is to present full picture of cause of action to make the opposite party to understand the case that has been set up against him and which is Shivgan 26/33 E P-27-2019.odt required to meet; (ii) distinction between the 'material facts' and 'material particulars' is indeed important because different consequences follow from deficiency of such facts or particulars in the pleadings; (iii) failure to plead even single 'material fact' leads to incomplete cause of allegations of such charge and it is liable to be struck off under Order 6 Rule 16 of the CPC; WHEREAS; (iv) if petition, suffers from deficiency of material particulars, the Court has discretion to allow the petitioner to supply required particulars, even after expiry of limitation period; (v) Although it may be permissible for party to furnish particulars even after period of limitation for filing election petition has expired with the permission of the Court; (vi) however, no material fact unless pleaded, can be permitted to be introduced after expiry of period of Shivgan 27/33 E P-27-2019.odt limitation. 22 Given the above conspectus of case-laws, as to the pleadings on the "material facts" and omissions to plead "material facts" and consequences thereof, in my view, pleadings relating to corrupt practice of circulating the Fake Video were incomplete in-as-much as petitioner has neither pleaded nor shown nor disclosed, source of Fake Video in the hands of the returned candidate nor pleaded nexus between Mr. Budol and the returned candidate. These were not just omissions but were thoroughly deficient of material facts as, to form opinion that Fake Video was circulated by the returned candidate on social media to tarnish the image of the petitioner. Therefore, as Petition omits to plead "material facts", and not 'particulars' recourse to Section 86(5) of the act cannot be taken as suggested by Mr. Godbole, the learned Senior Counsel appearing for the petitioner. Shivgan 28/33 E P-27-2019.odt 23 Petitioner's case is not only confined to non- disclosure of 'material facts', in terms of Section 83(1)(d) but also to violation of Section 100(1)(d)(iv) of the said Act. The said Section is extracted as below; "100. Grounds for declaring election to be void.-- [(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion-- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [* * *] [or the Government of Union Territories Act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of Shivgan 29/33 E P-27-2019.odt any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void]" Thus, to get an election declared as void under the said provision, the election petitioner must aver that, on account of non-compliance with the provisions of the constitution or of this Act or of any rules, orders made under the Act, the results of the election in so far as it concerns returned candidate was materially affected . Here, it is petitioner's case that returned candidate has committed Corrupt Practices as well as committed electoral offences and, therefore, returned candidate was required to be declared as disqualified. Petitioner in Paragraph 28 of the Petition averred that, unlawful campaign during prohibited 48 hours of the election by Uddhav Thakarey and others resulted in unlawful election process, which resulted in, election of the Shivgan 30/33 E P-27-2019.odt returned candidate by thin margin of 409 votes. In paragraph 29, 30, 31 and 32, petitioner pleaded that illegal election campaign by the senior leader of Shivsena, has influenced voters to vote for returned candidate. Therefore, it is petitioner's case that the alleged violation of the orders/model code of conduct, resulted in election of respondent no.1 by margin of 409 votes. Section 100(1)(d) (iv) requires pleadings as to how alleged illegal campaign caused voters to vote in favour of the returned candidate. Thus, pleading of this material fact of link between illegal election campaigning and victory of returned candidate by margin of 409 votes was essential 'fact'. Thus, to say that unless such link is pleaded, it was not possible to frame the triable issue. Factually speaking, averment in paragraphs 28,29,30 and 31 of the Petition, are simply expressing "possible view of the petitioner; without pleading link. Therefore, in absence of link between alleged violation of model code of conduct and victory of returned Shivgan 31/33 E P-27-2019.odt candidate, how the petitioner, could assert that, because of alleged violation of 'Model Code of Conduct, four hundred and nine voters, caste their votes to returned candidate. In fact, petitioner has simply reproduced, text of Section 1000(1)(d)(iv) of the Act and nothing more. Averments in paragraph no.28 and onwards, simply suggest that the petitioner just undertook and launched roving and fishing enquiry without concrete material with them. Additionally mere 'chance' or 'likelihood' of voters being influenced by illegal campaigning would not constitute essential fact, to contend that illegal campaigning materially affected the election result of the returned candidate. In the context of the facts of the case, ruling in the case of Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541 has been rightly relied upon by Mr. Singh wherein the the Apex Court observed thus, "24 It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what Shivgan 32/33 E P-27-2019.odt manner the result of the election insofar as it concerned the first respondent was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition." 24 For the foregoing reasons, I hold that petitioner has failed to, plead material facts, resulting into 'incomplete cause of action'; amounting disobedience of mandate of Section 83(1)(a) and 100(1)(d)(iv) of the Act. 25 As a result, the application is allowed and in consequence, Election Petition is rejected. 26 Since the Election Petition itself is disposed of, nothing survives in the Application (L) No.17416 of 2021 and same is also disposed of. (SANDEEP K. SHINDE,J.) Shivgan 33/33