The main legal point established in the judgment is that an election petition must adequately plead the facts necessary to constitute the ground for challenging the election under Section 100(1)(d) of the Representation of the People Act 1951.

1. This is an election petition filed against the returned candidate by the petitioner who had contested from Chandrapur-71i Assembly Constituency.

2. The challenge to the declaration in favour of the returned candidate is mainly on the ground of the information received by petitioner about the unreliability of the Electronic Voting Machines and susceptibility of the Electronic Voting Machines to tampering and petitioner's own knowledge that at 160 booths referred to in paragraph No.19 of Election Petitions, the EVMs were actually ridged/tampered.

3. Considering the rival contentions, issues were framed in relation to lack of disclosure of adequate grounds for challenging the election. Issue no.2 reads as follows:

“(2) Are material facts as required to be pleaded by Section 83(1) (a) of the Act absent in the election petition? Consequential issue No.5 was also framed as to what orders need be passed after passing of the order on issue No.2.

4. The returned candidate has filed an application under Order 7 Rule 11(a) of Civil Procedure Code and prayed for dismissal of election petition on the ground that the EVMS do not disclose the cause of action.

5. Heard parties to the petition at length on preliminary issue.

6. Perused the pleadings and case law relied upon by the respective parties.

7. According to the learned Advocate Shri A. S. Chandurkar, the description contained in the election petition barely discloses the following:

(a) The apprehension that the EVMs are tampered.

(b) Opinion that the EVMs can be tampered.

(c) The fact that the election commission does not have source code of data of the EVMs, is sufficient to believe un-reliableness of EVMs.

(d) For fairness of election, it is necessary that there should be a paper back up of the ballots to enable physical verification of the count if required. Therefore, election subject matter cannot be considered or regarded to be fair and impartial.

(e) The petitioner believes that the EVMs are tampered, and believes so because the petitioner has received less votes or the returned candidate received substantial votes in the 160 polling booths listed in paragraph No.19, where the petitioner has a strong hold.

8. In support of the objection, the learned Advocate Mr. A. S. Chandurkar has urged that:-

(a) the election petition does not conform to mandatory requirement of clause (d) of Section 100(1) namely it does not disclose as to how the result of election in so far as it concerns the returned candidate, was materially affected on account of the alleged tamperability of EVMs, and actual tampering which the petitioner believes, has occurred.

(b) The election petition does not disclose material facts as to how EVMs were actually tampered.

(c) The petition is liable to be rejected under Order 7 Rule 11(a) of Civil Procedure Code due to failure tom disclose material facts to describe the cause of action.

9. The learned Advocate Mr. A. S. Chandurkar has placed reliance on the following judgments:-

(1) 1986 (Supp) Supreme Court Cases 315, Azhar Hussain Vs. Rajiv Gandhi.

(2) (2009)10 Supreme Court Cases 541, Ram Sukh Vs. Dinesh Aggarwal.

(3) [2010 (4) Mh.L.J.,660 Shishupal Natthuji Patle Vs. Praful Manoharbhai Patel.

(4) Order in C.A. No.4325 of 2005 in Election Petition No.4 of 1994, Vasantrao Itkelwar Vs. Rajendra Mulak, passed by Shri Justice B. P. Dharmadhikari on 10th August, 2006. (5) 2006(3)AIR Bom R 393 Banwarilal B. Purohit Vs Vilas Muttemwar & Ors.

10. The purpose of reliance on these judgments is to urge that what the petitioner is required to plead while challenging the election the factual matter which if proved the election of returned candidate may be set aside, however, the petition does not withstand this test. Based on these points it is argued that in absence of pleadings noted in foregoing points the election petition deserves to be dismissed.

11. In the course of reply, the learned Advocate Shri A. S. Kilor for the petitioner has submitt