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2002 DIGILAW 318 (GAU)

Dipak Ch. Ruhidas v. Chandan Kumar Sarkar

2002-07-31

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.— The Election Petition No. 17/2001 presented by one Sri Dipak Chandra Ruhidas, the election petitioner laying challenge to the election of Shri Chandan Kumar Sarkar, the respondent to Assam Legislative Assembly from No. 35 Abhayapuri South (S.C.) Legislative Assembly Constituency (hereinafter referred to as "LAC" for short) reserved for Scheduled Caste candidate alleging that the respondent is not a Scheduled Caste as claimed, has been assailed outrightly by the respondent/applicant by filing the instant miscellaneous application. 2. The last general election to the Assam Legislative Assembly was held in the month of May, 2001. The LAC under reference, is a Reserved Constituency for the Scheduled Caste community (hereinafter referred to as "SC" in short). In this LAC the following dates were notified for the purpose of election: Last date of filing nomination : 23.4.2001 Date of scrutiny : 24.4.2001 Date of Withdrawal of candidature : 26.4.2001 Date of poll : 10.5.2001 Date of counting : 13.5.2001 After the counting of votes which took place on 13.5.2001 as referred above, the respondent/applicant was declared elected by the returning officer on 14.5.2001. 3. The sole ground of criticism set out in the election petition is that although the respondent/applicant does not belong to SC community as he is not a member of Namasudra' Community which is one of the recognised S.C. Community of the State of Assam, his nomination was improperly accepted by holding him as SC, and as such his election from the LAC reserved for SC, is liable to be set aside. 4. The respondent/applicant refuting all those allegations made in the election petition moved this misc. application being Misc. Case No. 28/2001 under Order 6 Rule 16 and Order? Rule 11 read with Section 151 CPC for dismissing the election petition summarily. This misc. application has been supported by an affidavit. Against this misc. application the election petitioner/opposite party has also filed an objection accompanied by verification. 5. I have heard Mr V. Hansaria, learned counsel for the respondent /applicant and Mr A.B.Choudhury, learned counsel for the election petitioner/opposite party. 6. It is common case of the parties that the seat against which the respondent has been declared elected is a reserved seats. It is reserved for SC only. 5. I have heard Mr V. Hansaria, learned counsel for the respondent /applicant and Mr A.B.Choudhury, learned counsel for the election petitioner/opposite party. 6. It is common case of the parties that the seat against which the respondent has been declared elected is a reserved seats. It is reserved for SC only. It may be observed that Article 332 of the Constitution provides for reservation of seats for the Scheduled Castes and Scheduled Tribes (for short "SC" & "ST") except the Scheduled Tribes in the tribal areas of Assam, in Nagaland and in Meghalaya in the Legislative Assembly of every State. The actual reservation of such seats for SC and ST in the Legislative Assemblies of various States is made under Section 7 of the Representation of the People Act, 1950. The seat in question is thus reserved for SC under valid law. It is therefore, undeniable that one of the essential qualification for candidate to contest this reserved seat was that he must be a member of SC community of the State. 7. The core issue that arises for decision herein is whether the election petition is liable to be dismissed on consideration of the submissions advanced in view of the provisions of Order 6 Rule 16 and Order 7 Rule 11 CPC as well as the provisions of the Representation of the People Act, 1951 (hereinafter in short "Act"). 8. Before going to have a detailed discussion on the issue involved, it would be apt and expedient to be acquainted with the provisions of law relevant in this case. According to Section 87 of the Act, subject to the provisions of this Act and of any Rule made thereunder, every election petition shall be tried by High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits. Section 83 provides for "Contends of Petition" and the relevant provision of the said Section is extracted hereunder - "Contents of petition:- (1) An election petition : (a) shall contain a concise statement of the material facts on which the petitioner relies; (b).............................................................. Section 83 provides for "Contends of Petition" and the relevant provision of the said Section is extracted hereunder - "Contents of petition:- (1) An election petition : (a) shall contain a concise statement of the material facts on which the petitioner relies; (b).............................................................. ........................................................and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of the 1908) for the verification of pleadings; (2) Any schedule or annexure to the-petition shall also be signed by the petitioner and verified in the same manner as the petition." 9. It is also necessary to refer to the provisions of Order 6 Rule 16 and Order 7 Rule 11 which read as follows: (a) Order 6 Rule 16 provides - "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 vaxatious, or (b) which may tend to prejudice, embarrass delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court." (b) Rule 11 of Order 7 reads as follows: "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: (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-papers, 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.)" 10. It is settled that an election petition should contain a concise statement of material fact which would include the fact related to the election, the result thereof, the ground on which it is sought to be set aside, right of the petitioner to present the petition and the like. Section 83 itself is mandatory and requires first a concise statement of the material facts on which the petitioner relies. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes non-acceptable. All the primary facts which must be proved at the trial by the parties to establish the existence of the cause of action or his defence are, material facts. All facts that are essential to clothe the petitioner with a complete cause of action are material facts which must be pleaded and failure to plead even a single material fact amounts to contravention of the mandate to Section 83(1)(a) of the Act. 11. It is also established position that if the Court on examination of the election petition finds that it does not disclose any cause of action it will be justified in striking out the unnecessary pleadings. The Court is empowered by Order 6 Rule 16 to strike out the pleadings at any stage of the proceedings. It is also the duty of the Court to see, when the election petition is filed whether it contains the necessary allegation in order to constitute the cause of action for going into the trial and if the Court is satisfied that the petition does not disclose any cause of action it is liable to be rejected. In so far as the elected candidate is concerned he is merely to refute the allegations made by the petitioner in accordance with the provision of Code of Civil Procedure. 12. In view of the above legal position, now it has to be seen, whether this election petition contains such materials facts as a whole in order to constitute the cause of action for its survival 13. I have carefully perused the contentions and statements made in the election petition. Be it mentioned that the election petitioner is an elector as per the electoral roll in the LAC, and a member of the SC community of Rishi. I have carefully perused the contentions and statements made in the election petition. Be it mentioned that the election petitioner is an elector as per the electoral roll in the LAC, and a member of the SC community of Rishi. The election petitioner has recorded his age as about 29 years in the verification signed on 27.6.2001, accompanying the election petition. 14. In the election petition, the statements made in paragraph 1 to 4 are general and those are accepted to be undisputed. Paragraph 5 wherein it is stated that the respondent/applicant who does not belong to any recognised SC community submitted his nomination paper for the LAC in question claiming himself to be the member of the SC community, appears to be vague and vaxatious inasmuch as there is no indication how and why the respondent cannot be said to be member of the SC community. Paragraphs 6 and 7 refer to submissions of a written objection dated 24.4.2001 by one Bishnu Ram Das, Secretary, North Salmara Zilla Anusuchit Jati Parishad to the returning officer of the LAC enclosing an abstract of the resolution No. 3 adopted in 3rd biannual conference of the said Parishad held at Chalantapara on 21.1.2001, wherein the said Parishad expressed its dissatisfaction for not taking any punitive action against the respondent as per order dated 15.3.94 issued by the Election Commissioner of India. It is alleged that the returning officer of the said Constituency overlooked the relevant fact that the respondent did not have any valid certificate issued by the competent authority as required by law and without recording any positive finding on the issue, most illegally rejected the objection and improperly accepted the nomination paper of the respondent which has materially effected the result of the election wherein the respondent was declared elected. It is really difficult for the Court to accept these statements of the election petitioner as the material facts. It is really difficult for the Court to accept these statements of the election petitioner as the material facts. It is surprising how the election petitioner being an elector who was admittedly not a party either during the submission of the written objection or at the time of illegal rejection of the objection and improper acceptance of the nomination of the applicant by the returning officer, can verify the said statements to be true to his knowledge and also to be true to his information being derived from records without referring to any source when such action of submitting objection was done by some other person. It is also to be noted that when it is alleged that returning officer had illegally rejected the objection and then he had improperly accepted the nomination of the respondent, the said returning officer was not made a party in the election petition. This goes to show that these statements prima facie appear to be vague, 15. In paragraphs 8 to 10 of the election petition the petitioner has projected the respondent's origin since his birth at Jateswar under Falakata Police Station in the District of Jalpaiguri, West Bengal to his shifting along with his father to Abhayapuri in the year 1966 during which the respondent was only six years of age. The statements made in paragraphs 8-10 are also verified as true to his knowledge which he believes to be true. Considering the age of the election petitioner as noted above, it may be said that he is not supposed to know the birth of the petitioner and his shifting to Abhayapuri in 1966. There is also no indication of source as to how the petitioner has come to know about all facts narrated in those paragraphs. So these statements in my view are vague and frivolous. 16. Paragraph 11 records as follows:- "That in the year 1991, for the first time, the petitioner contested election from 35 Abhayapuri South (SC) LAC as a Scheduled Caste candidate set up by Indian National Congress and the respondent was duly elected." In first part of the aforesaid paragraph, it is stated that "the petitioners" contested the election from the said Constituency and in the second part, it is stated that the respondent was duly elected. On a bare perusal of the same, it appears that the paragraph was not properly drafted. On a bare perusal of the same, it appears that the paragraph was not properly drafted. It depicts a clear picture of vagueness. Even no attempt has been made to correct/amend this paragraph when the election petitioner has already availed the opportunity of correcting paragraphs 16 and 20. It is pertinent to mention herein that after filing the objection against the misc. application, the election petitioner/opposite party has been permitted twice to make correction of clerical/typographical mistake occurred in paragraph 20 and 16 vide orders dated 4.12.2001 and 7.2.2002 passed in Misc. Case No. 35/2001 and Misc. case No. 51/ 2002 respectively that too without any objection from the applicant. 17. In paragraph 12 it has been pleaded that the respondent obtained caste certificate dated 15.1.83, 28.12.88 and 31.3.90 from the Chief Councilor, Mahkuma Parishad, Goalpara, the Extra Assistant Commissioner, (EAC) North Salmara and the District Magistrate, Bongaigaon respectively who certified that the applicant belongs to 'Namasudra' community which is recognised as SC community. These paragraphs have also been verified as true to his information being derived from records which he believes to be true without mentioning the source of information. It is not the case of the petitioner that these certificates have ever been cancelled by any authority or he has ever challenged the veracity of those certificate before any such authorities who issued such certificate. Such statement cannot be accepted as a material facts. He has also verified these paragraphs as true to his information being deprived from records which he believe to be true. But there is no allegation that certificates have ever been cancelled by any authority and the same cannot be construed as a material facts. 18. In paragraphs 13 to 19 the election petitioner has pleaded that on the basis of a complaint dated 20.12.93 submitted by one Rabindra Banikya Ex-Chairman, Assam State Development Corporation for SC Ltd., Abhayapuri to the Chief Election Commissioner, the Election Commission of India New Delhi has taken up the matter as a result of which an enquiry was conducted by one C.K. Das, the then Commissioner and Secretary to the Govt of Assam, Revenue Deptt. as regards the allegation that the respondent, a sitting MLA at that relevant time did not belong to SC community of Namasudra' and after such enquiry a report dated 10.2.94 was submitted to the Govt. as regards the allegation that the respondent, a sitting MLA at that relevant time did not belong to SC community of Namasudra' and after such enquiry a report dated 10.2.94 was submitted to the Govt. of Assam which has forwarded to the Election Commission of India and thereafter the Election Commission of India by order dated 15.3.94 issued direction to the State Govt. to direct the Deputy Commissioner/ District Magistrate, Bongaigaon, Assam to cancel forthwith the SC certificate dated 31.3.90 in respect of the respondent and also to draw attention of the Hon'ble Speaker of Assam Legislative Assembly for appropriate action against the respondent under Article 173(C) of the Constitution of India read with Section 5(a) of the Act. The election petitioner has pleaded in paragraph 17 annexing as Annexures 12 and 13 that one Srimanta Kumar Das, General Secretary of Asom Anusuchit Jati Parishad issued a letter dated 21.3.2001 to the Election Commissioner of India complaining that the respondent does not belong to Scheduled Caste community with a request to take appropriate action against him. In reply, the Secretary to the Election Commission of India issued letter dated 24.4.2001 informing Mr Das that the Commissioner has already referred the matter to the State of Assam vide letter dated 2.5.97 to take necessary action pursuant to the directives of the Hon'ble Gauhati High Court as per its order dated 18.12.95 and therefore, it is for the State Government to take action in this matter. It is also stated in paragraph 18 of the petition that the respondent challenged the aforesaid order dated 15.4.94 of the Election Commission of India by a writ petition being Civil Rule No. 1157/94 before this Court. Be it noted that the petitioner has putting the correct date of the order of the Election Commission of India which ought to have been 15.3.94 instead of 15.4.94 as shown hereinafter. It is also stated that this Court by its judgment dated 16.4.94 allowed the said civil Rule holding that the Election Commissioner has no jurisdiction to issue the impugned order dated 15.3.94. The decision of which shown to be reported in 1995(1) GLR 87. It is further stated that against the said judgment the Election Commission of India preferred a writ appeal being No. 544/94 before a Division Bench of this High Court. The decision of which shown to be reported in 1995(1) GLR 87. It is further stated that against the said judgment the Election Commission of India preferred a writ appeal being No. 544/94 before a Division Bench of this High Court. The Division Bench, however, by its judgment dated 18.12.95 dismissed the said appeal upholding the judgment of the above referred civil Rule. It is seen that the date of judgment of the Civil Rule No. 11 577 94 has also been shown wrongly as 1 6.4.94 which ought to have been 16.9.94 as revealed from the reported case in 1995(1) GLR 87. A conspectus reading of those paragraphs goes to show that those are drafted haphazardly and carelessly and do not give rise to any 'material facts'. 19. In the case reported in 1995(1) GLR 87 (Chandan Kr. Sarkar- Vs-Chief Election Commissioner of India and Ors.) mentioned in paragraph 17 of the election petition, this Court while setting aside the impugned order dated 15.3.94 issued by the Election Commissioner of India held that the certificate issued in favour of the respondent/applicant (the writ petitioner in that case) by the competent authority like MLA Deputy Commissioner etc. would be normally presumed to be issued after proper enquiry but those are always subject to challenge and the same can be done only by the authority issuing the certificate and a Division Bench of this Court in Election Commission of India and Ors- Vs-Chandan Kr Sarkar reported in 1996(1) GLT 202 (Writ Appeal No. 544/94 referred in paragraph 17 of the petition) without disturbing the said finding dismissed the writ appeal preferred by the Election Commission. Keeping in view the finality of the judgment of this Court arising out of the challenge laid against the order dated 15.3.94 of the Election Commission of India, it may be observed that these statements made in paragraphs 13 to 19 are unnecessary and cannot form the part of material facts. 20. In paragraph 20 (as it stands after correction of the typographical mistake) the petitioner has pleaded that the respondent's father Bijay Kr Sarkar was not a member of Scheduled Caste community and he was an elector of Jateswar, West Bengal and therefore the respondent/applicant could not claim to be a member of any SC community not to speak of 'Namasudra community'. This paragraph has also not been verified by the petitioner as to his knowledge without disclosing the source of his knowledge. So this allegation ex-facie is vague and vexatious. 21. Paragraph 23 speaks that caste certificate issued on 15.1.83,28.12.88 and 31.3.90 issued by the Chief Councilor, Extra Assistant Commissioner and the District Magistrate respectively are not genuine certificates as those officers were not empowered to issue such certificate on the relevant date inasmuch as a Deputy Commissioner of a concerned District was only empowered to issue such certificate with effect from 15.5.91 when the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Service and Posts) (Amendment) Rules 1991 came into force. The statement itself appears to be self-contradictory as the Deputy Commissioner of the concerned District was only empowered on 15.5.91 to issue caste certificate when the certificate mentioned in the said paragraphs were admittedly issued prior to 15.5.91. It shows that the allegation made therein are absolutely vague and frivolous. 22. The election petitioner has pleaded in paragraph 24 that respondent obtained the aforesaid three certificates by 'suppression' of facts/'manipulation/ 'exercising of undue influence' on the aforesaid authorities for illegal gain and thus obtained the certificate fraudulently in connivance with such authorities. But the petitioner has not specifically or categorically pleaded about the details of 'suppression' of facts/manipulation/ exercising of un-due influence or as regards the obtaining of the certificate 'fraudulently' or in connivance 'with the authorities. Such general expressions like suppression' of facts/'manipulation/ 'exercising of undue influence' in the pleadings do not amount to any allegation of facts. More so, the contentions made in this paragraph are also verified by the petitioner to be true to his knowledge which he believes to be true. But the allegations made in this paragraphs as stated above cannot be a matter 'true to the knowledge' of the petitioner inasmuch as it is not the case of the petitioner that certificates were issued in his presence and he was very much aware of such manipulation etc. There is no indication about the source for his knowledge as regards these allegations. Therefore the contentions made in this paragraph are otiose and vague. 23. Paragraph 25 and 26 refer to the facts that the respondent/applicant being a caste Hindu and not a member of SC community was not qualified to contest from the LAC reserved for SC community. There is no indication about the source for his knowledge as regards these allegations. Therefore the contentions made in this paragraph are otiose and vague. 23. Paragraph 25 and 26 refer to the facts that the respondent/applicant being a caste Hindu and not a member of SC community was not qualified to contest from the LAC reserved for SC community. This averments also have been verified by the petitioner to be true to his knowledge. The verification seems to be defective because the fact that the petitioner is not a member of SC community and a Hindu cannot be within his personal knowledge and as such, this contentions in this paragraphs are obviously vague. 24. In paragraph 27 the petitioner has pleaded that there was no valid document or certificate or cogent evidence before the returning officer to show that the respondent belong to SC community and nomination of the respondent was improperly accepted which has materially effected the result of the election in so far as it concerns the respondent. This paragraph has also been verified by the petitioner to be true to his personal knowledge. It is not the case of the petitioner that he was present before the returning officer at the time of scrutiny of the nomination paper of the respondent by the said officer. More importantly the returning officer against whom the allegation of improper acceptance of nomination has been framed, he was not made a party in this election petition. Further no objection whatsoever was filed by the election petitioner against the nomination of the respondent. 25. Strangely enough that there is no paragraph as such in this election petition wherein the cause of action might have been stated in a concise form. 26. As regards the reliefs sought by the election petitioner the same also appears to be disturbing. Further no objection whatsoever was filed by the election petitioner against the nomination of the respondent. 25. Strangely enough that there is no paragraph as such in this election petition wherein the cause of action might have been stated in a concise form. 26. As regards the reliefs sought by the election petitioner the same also appears to be disturbing. Prayer portion of the election petition seeking reliefs are quoted hereunder: "(a) To set aside the election of the respondent Shri Chandan Kumar Sarkar to the Assam Legislative Assembly from No. 35 Abhayapuri South (SC) LAC after declaring the election as void on the ground of improper acceptance of the nomination paper of the respondent which has materially affected the result of the election; (b) To declare the respondent as not being a member of Scheduled Caste community (Namasudra) and to declare all caste certificate in favour of the respondent showing him to be a member of the Scheduled Caste community as null and void, illegal and inoperative; (c) To direct the competent authority under Section 8-A of the representation of the People Act, 1951 to submit to the President of India the findings of this Hon'ble Court for passing necessary order disqualifying the respondent as per law; (d) To direct the State Government to draw the attention of the Hon'ble Speaker of Assam Legislative Assembly under Article 193 of the Constitution of India for taking appropriate action against the respondent; (e) To declare the respondent as not qualified to be a member of the Assam Legislative Assembly in view of Article 173(c) read with Section 5(a) of the Representation of the People Act, 1951 having been choosen from a constituency reserved for Scheduled Caste; (f) To direct the State Government to initiate forthwith criminal proceedings under the relevant provisions under the Indian Penal Code against the said respondent; (g) To direct the Electoral Registration Officer of No. 35 Abhayapuri South (SC) LAC and 13 Falakata (SC) LAC of West Bengal to take penal action against the respondent under Section 31 of the Representation of the People Act, 1951; (h) To direct the respondent to pay the cost of the petition and expenses of the proceedings to the petitioner; and (i) To grant any other relief or reliefs as may be deemed fit, just and proper." 27; A bare perusal of the above prayer would go to show that save and except prayer (a) the relief claimed under prayer (b) to (g) are not within the purview of the provision of Section 98 and 99 of the Act. For convenience, Section 98 and 99 of the Act may be referred as follows:- "98. Decision of the High Court - At the conclusion of the trial of an election petition; (the High Court) shall make an order - (a) dismissing the election petition; or (b) declaring the election of (all or any of the returned candidates) to be void; or (c) declaring the election of (all or any of the returned candidates) to be void and the petitioner or any other candidates to have been duly elected. 99. Other orders to be made by the High Court- (1) At the time of making an order under Section 98 (the High Court) shall also make an order - (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording - (i) finding whether any corrupt practice has or has not been proved to have been committed at election, and the nature of that corrupt practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and) (b) fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid; provided that (a person who is not a party to the petition shall not be named) in the order under sub-clause (ii) of Clause (a) unless - (a) he has been given notification to appear before (the High Court) and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice he has been given an opportunity of cross-examining any witness who has already been examined by (the High Court) and has given evidence against him, of calling evidence in his defence and of being heard. (2) In this Section and in Section 100, the expression 'agent' has the same meaning as in Section 123)." 28. In view of the above provision of law the prayer made in (b) to (g) of the election petition are unnecessary, frivolous, vaxatious and vague. (2) In this Section and in Section 100, the expression 'agent' has the same meaning as in Section 123)." 28. In view of the above provision of law the prayer made in (b) to (g) of the election petition are unnecessary, frivolous, vaxatious and vague. Under prayer (c), the prayer to direct the competent authority under 8(A) of the Act to submit to the President of India the finding of this High Court for passing necessary orders disqualifying the respondent is also not in conformity with Section 8(a) of the Act which provides for such direction only as regards the qualification on the ground to corrupt practice. In prayer (a) only, a prayer has been made to set aside the election of the respondent from the LAC on the ground of improper acceptance of nomination of the respondent that too without mentioning the provision of the Act. If is noticed, on careful perusal and appreciation of the contentions made in the entire election petition, that though the election of the petitioner has been challenged on the ground of improper acceptance of the nomination by the returning officer, there is no direct allegation against the respondent save and except those untenable and vague averments like 'not being SC', obtaining the caste certificate fraudulently' and 'by manipulation' etc. as discussed in earlier paragraphs. The question of improper acceptance of the nomination paper basically confines to the returning officer who is the competent authority of acceptance of nomination paper of the SC candidate under Section 33(2) of the Act. Section 33(2) provides as follows:- "In a constituency where any seat is reserved, a candidate shall not be deemed to 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." The requirement of statute law is that the nomination paper of the SC candidate must contain a declaration by him that he is a member of Scheduled Caste and nothing more. Be that as it may, in the instant case surprisingly the returning officer has not been made a party in this election petition. 29. Be that as it may, in the instant case surprisingly the returning officer has not been made a party in this election petition. 29. On overall consideration and appreciation of the contentions and statement including the prayers of the election petition in its totality, I fail to appreciate how this pleadings can constitute the material facts to give rise to cause of action for the purpose of trial of the election petition. In view of the discussion herein above, the abovementioned paragraphs are liable to be struck out from the pleading under Order 6 Rule 16CPC. 30. Mr Hansaria, learned counsel appearing for the applicant/respondent has contended that the respondent belongs to 'Namasudra' community which is recognised as SC community in the State of Assam. Being a SC candidates the respondent was elected in 1991 for the first time to Assam Legislative Assembly from the present LAC in question. While the applicant was a sitting member of the Assam Legislative Assembly on the basis of a complaint lodged by rival candidates the Election Commission of India has passed an order on 15.3.94 by which the Election Commission directed that the State Govt. should direct the District Magistrate/Deputy Commissioner, Bongaigaon to cancel SC certificate dated 31.3.90 issued by him in favour of the respondent and also to initiate prosecution against the respondent. Moreso, by the said order attention of the Speaker of Assam Legislative Assembly was also drawn by the Election Commission to take proper action against the respondent under Article 193 of the Constitution of India. The applicant/respondent challenged the said order before this High Court by filing writ petition as already been recorded above. It is submitted by the learned counsel that since no appeal has been preferred against the judgment of the Division Bench of this Court the same has attained its finality. According to Mr Hansaria in 1996 also the respondent contested the General Assembly Election but was defeated. Again in the year 2001 the respondent contested the last General Assembly Election from the said reserved Constituency as a SC candidate. Though objections were raised by one Sri Ayodhaya Ram Das and Shri Rateshwar Sarkar before the returning officer during the scrutiny to the fact that respondent does not belong to SC community, the returning officer legally rejected the said objection and respondent's nomination was accepted. Though objections were raised by one Sri Ayodhaya Ram Das and Shri Rateshwar Sarkar before the returning officer during the scrutiny to the fact that respondent does not belong to SC community, the returning officer legally rejected the said objection and respondent's nomination was accepted. It is pointedly urged on behalf of applicant that no objection whatsoever was ever filed by the election petitioner against the nomination of the respondent before the returning officer and as such the election petitioner is not a proper person to question the acceptance of the nomination paper by the returning officer. 31. Mr Hansaria has further argued that the petitioner cannot be permitted to challenge the validity and legality of those certificates issued by various competent authorities because the question of correctness of those certificate has already been dealt with by both the learned Single Judge and the Division Bench of this Court in Chandan Kr Sarkar's case (supra) and Election Commission of India's case (supra). In support of his submission, he has referred the last portion in paragraph 37 of the judgment in Chandan Kr Sarkar's case (supra) which reads as follows:- "Be that as it may, the petitioner had been issued certificate by competent authorities like MLA and the Deputy Commissioner, etc, normal presumption would be that those certificates had been issued after proper inquiry; however, it is always subject to challenge. But then, it can be done by the authority issuing the certificate." 32. This Court finds enough force in the submission put forward by the learned counsel for the applicant. Once this Court opined that the certificate issued by the competent authority like MLA, Deputy Commissioner etc, would be normally presumed to be issued after proper enquiry and those can be challenged only by the issuing authority, the correctness of the same cannot be a subject matter now in this election petition. Nowhere in the election petition it has been pleaded that these certificates have ever been challenged by the election petitioner after those judicial decision mentioned above till the election of the respondent. 33. Nowhere in the election petition it has been pleaded that these certificates have ever been challenged by the election petitioner after those judicial decision mentioned above till the election of the respondent. 33. As regards the verification of the paragraphs 1, 2, 5, 6, 8, 10, 11, 13, 14, 20 to 27 and 29, it is contended by the learned counsel that the verification of those paragraphs is not in accordance with law inasmuch as in the said verification the election petitioner has stated those paragraphs to be "true to my knowledge which I believe to be true". But on the face of these paragraphs, it appears that these facts could not have been within the personal knowledge of the petitioner. Hence, those paragraphs are liable to be struck off on the ground of vagueness and improper verification. 34. Relying on a recent decision of the Apex Court in Hari Shanker Jain- Vs-Sonia Gandhi 2001(8) SCC 233 , Mr Hansaria has pointedly drawn attention of this Court to the relevant portion of the views expressed in paragraph 30,32 and 33 which reads as follows:- "30. It must be held that the respondent by virtue of the certificate granted to her under Section 5(1 )(c) of the Citizenship Act, which certificate has not been cancelled, withdrawn or annulled till date, is "a citizen of India". The petition are filed nearly two decades after the grant of citizenship to the respondent. At no point of time did the petitioner even challenge the inclusion of her name in the electoral roll. Making vague and bald allegations, without giving any material facts, after losing the elections, goes to show that proper care even was not taken before filing of the petitions by gathering and stating all material facts......." "32. In both the election petitions there are averments made touching the contents of the respondent's application filed for grant of certificate of citizenship so as to point out alleged infirmities in the application and the proceedings taken thereon but without disclosing any basis for making such averments. None of the petitioners states to have inspected or seen the file nor discloses the source of knowledge for making such averments. Clearly such allegations are bald, vague and baseless and cannot be put to trial." "33. None of the petitioners states to have inspected or seen the file nor discloses the source of knowledge for making such averments. Clearly such allegations are bald, vague and baseless and cannot be put to trial." "33. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as "true" to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order 7 Rule 11 CPC." 35. Having regard to the judicial opinion above referred, I am in full agreement with the submission advanced by Mr Hansaria. It is admitted fact that the SC certificates were issued on 15.1.83, 28.12.88 and 31.3.90 by the competent authorities must before coming into force of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Service and Posts) (Amendment) Rules 1991 on 15.9.91 by which only the Deputy Commissioner of the concerned District has been empowered to issue such certificate. No attempt has been made to challenge those certificates before the competent authority in view of the decision of this Court rendered on 16.9.94 and 18.12.95 in Civil Rule No. 1157/94 and Writ Appeal No. 544/94 respectively (Chandan Kumar Sarkar's case (supra) and Election Commission of India's case (supra). Even the petitioner has not put up any objection before the returning officer at the time of scrutiny of the nomination of the respondent in the last General Assembly Election. In that view of the matter, all the averments and allegations made in this election petition most of which could not be within the personal knowledge of petitioner but still verified as true to his knowledge, are vague, bald, and unnecessary without containing any material facts. As such, it is safely held that the filing of this election petition itself is abuse of the process of the Court. 36. Mr A.B. Choudhury, learned counsel for the opposite party/election petitioner refuting the contentions advanced on behalf of the applicant for rejection of the election petition as well as striking out the pleadings, has forcefully argued that the applicant not being a SC from 'Namasudra' community was not eligible to contest in the last General Assembly Election held in the year 2001 as a SC candidate from the concerned LAC reserved for the SC. The alleged certificate on the basis of which the applicant respondent is claiming to be SC; are absolutely false, fabricated and not at all genuine. Such facts in its entirety have been set out in the election petition and those are the material facts within the meaning of Section 83(l) (a) of the Act. It is also contended that in the decision of Chandan Kumar Sarkar's case (supra) and Election Commission of India's case (supra), this Court categorically Ruled that the issue as to whether the respondent belongs to SC community or not can only be decided in the election petition and as such, it is open for this Court to decide this issue in the instant case, and in view of the said judicial observation this election petition is preferred. In an effort to substantiate his argument in this point, he has also relied on the ratio of law laid down in Hari Shankar Jain's case (supra) wherein the Apex Court observed that the question whether the returned candidate is a citizen of India and so qualified to contest an election can be adjudicated upon by High Court on hearing an election petition. There is force in his submission and in view of Hari Sankar Jain's case (supra), it is beyond doubt that the election petitioner can challenge the question whether the returned candidate belongs to SC community and so qualified to contest the election. But the same can be done by setting out in the election petition the factual matrix clearly and cogently indicating that those facts so stated must not be vague and bald (reference to Paragraph 20 at page 250 of the above cited case). In the instant case, in view of the elaborate discussion herein above, it seemingly appears that the allegations made are not concise, precise and clear rather vague and bald. Accordingly I hereby agree to disagree with the submission of Mr Choudhury. 37. As regards the verification of the various averments made in the concerned paragraphs of the election petition, Mr Choudhury has vehemently contended that the election petition cannot be rejected on the threshold for any improper verification inasmuch as any defects in verification can be curable. Accordingly I hereby agree to disagree with the submission of Mr Choudhury. 37. As regards the verification of the various averments made in the concerned paragraphs of the election petition, Mr Choudhury has vehemently contended that the election petition cannot be rejected on the threshold for any improper verification inasmuch as any defects in verification can be curable. To drive home this submission, the learned counsel for the election petitioner, has ponderously relied on a decision of the Apex Court in G. Mallikarjunappa and another-Vs- Shamanur Shivashankarappa and others reported in AIR 2001 SC 1829 . In the cited case the Apex Court in paragraph-7 Held as follows- An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Non-compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisages by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly defective affidavit, is required to be judged at the trial on an election petition but Section 86(1) of the Act is in terms cannot be attracted to such a case." 38. At this juncture, Mr Hansaria has trenchantly argued that the contention of the election petitioner that defects in the verification are not fatal to the election petition and curable, is not sustainable. According to him the petitioner can challenge the mandate of electorate only in the manner provided by the statutes and cannot invoke the principle of common law or equity jurisdiction. In this context, learned counsel has referred to a decision of the Supreme Court in Jyoti Basu and others- Vs-Debi Ghosal and others reported in AIR 1982 SC983. According to him the petitioner can challenge the mandate of electorate only in the manner provided by the statutes and cannot invoke the principle of common law or equity jurisdiction. In this context, learned counsel has referred to a decision of the Supreme Court in Jyoti Basu and others- Vs-Debi Ghosal and others reported in AIR 1982 SC983. In paragraph 8 of the said decision it held as follows:- "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. 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 but only 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 not 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." 39. It is correct that the election petition is not liable to be dismissed in limine only on the ground that verification of the election petition has not been done properly and defective because such defects in verification are always a curable defects. But what is essential is that an attempt must be made to cure such defects. It is not suffice only to make statements that defective verification is curable. In the instant case, at no point of time, the election petitioner has intended to cure such defects inspite of having sufficient opportunities in this regard. Over and above, in view of the discussions at length hereinabove this petition lacks of material facts coupled with improper and defective verification. In the instant case, at no point of time, the election petitioner has intended to cure such defects inspite of having sufficient opportunities in this regard. Over and above, in view of the discussions at length hereinabove this petition lacks of material facts coupled with improper and defective verification. The law is that material facts being the entire bundles of facts needs proper verifications per law so that these constitute a cause of action. In absence of such material facts, on consideration of the election petition as a whole, this election petition has to be summarily dismissed. 40. In V. Narayanaswamy-Vs-C.P. Thirunavukkarasu reported in (2000)2 SCC 294 , the Apex Court in paragraph 23 held as follows:- "It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. 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. Non-compliance with the provision 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. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case, the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. In such a case, the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The Court, however, cannot dissect the pleadings into several parts and consider whether each one of them disclose a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the petition." 41. In Harishankar Jain's case (supra) the Apex Court in paragraph-21, 23 and 25 held as follows:- "21. A certificate of citizenship under Section 5 of the Act is a statutory certificate issued by statutory authority. A presumption of validity and regularity attaches with such certificate. Under Section 114 Illustration (e) of the Evidence Act, 1872 the Court may presume that official acts have been regularly performed. A presumption attaching with the certificate is available to be drawn to the effect that the prescribed authority issuing the certificate was competent to do so and that it had satisfied itself as to the existence of such facts as would entitle the applicant (that is, the respondent herein) to issuance of such certificate and that the application for the issuance of certificate filed by the applicant was in order. The presumption exists though it is rebuttable and not conclusive. 23. Section 83(1 )(a) of R.P.A, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. In other words they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression 'cause of action' has been compensionely defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of Court, Omission of a single material facts leads to an incomplete cause of action and the statement of claim become bad. The function of the party is to present at full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet (See Samant N. Balkrishna-Vs-George Fernandez 18, Jitendra Bahadur Singh-Vs-Krishna Behari 19). Merely quoting the words of section like chanting of a matra does not amount to stating material facts. Material facts would include positive statements of facts as also positive averments of a negative fact, if necessary. In V.S. Achuthanandan -Vs-P.J. Francis 20, this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleading is permissible to introduce such material facts after the time limit prescribed for filing the election petition. 25. There are two features common to both the election petitions. Firstly, both the petitions are verified as "true to personal knowledge" of the two petitioners respectively which is apparently incorrect as the very tenor of pleadings discloses that any of the petitioners could not have had personal knowledge of various facts relating to the respondent personally and during the course of hearing we had put this across to the two petitioners and they responded by submitting only this much that the verification if incorrect was capable of being cured. The second common feature in the two petitions is that there are bald assertions made about the Italian law without stating what is the source of such law as has been pleaded by the election petitioners or what is the basis for raising such pleadings. The second common feature in the two petitions is that there are bald assertions made about the Italian law without stating what is the source of such law as has been pleaded by the election petitioners or what is the basis for raising such pleadings. These averments also have been verified as "true to my knowledge" by each of the election petitioners a position wholly unacceptable." 42. In view of the above judicial views, the conclusion is that the pleadings of material facts should be specific, full and precise particularly complete, not nebulous, beyond doubt and exact and they should not contain vague, bald and twilight allegations. The statements must be strictly construed to the spirit of law. The averments and allegations must be verified properly and correctly to conform with the requirement of law under the Act and CPC. The material facts in relation to allegation of improper acceptance of the nomination paper by the returning officer vis-a-vis questioning the genuineness of the certificate issued by the competent authority would include the ground, the facts necessary to formulate a complete cause of action, the manner and nature of the pleadings and the ingredients of improper acceptance of nomination. As already discussed above, it is apparent on the face of the ordinary and comprehensive reading of the election petition as a whole that no material facts have been projected to sustain this election petition as it does not disclose any cause of action in the pleadings. Since an election petition has to be tried in accordance with the Civil Procedure Code in view of Section 87 of the Act, it is liable to be rejected/dismissed like a suit which does not furnish cause of action. Therefore this election petition needs to be rejected/dismissed under Order 7 Rule 11 CPC. 43. In the result, this misc. case is allowed. The Election Petition No. 177 2001 is hereby rejected/dismissed with costs. 44. Keeping in view the circumstances of this case, I fix the costs at Rs. 500/- (five hundred) and the election petition is directed to pay this amount to the respondent immediately. 45. It is directed that the substance of this judgment and order be communicated forthwith to the Election Commission and the Hon'ble Speaker, Assam Legislative Assembly and that an authenticated copy of the decision be also sent to the Election Commission of India at the earliest.