Election petition not disclosing any cause of action of triable issue.

(Original application filed praying to reject the above said Election Petition under Order VII Rule 11(a) of the Code of Civil Procedure.)

Election Petition No.6 of 2004 has been filed by the first respondent herein seeking a declaration that the election of the returned candidate namely the first respondent therein (petitioner herein) for No.3, Madras (South) Parliamentary Constituency in the election held on 10.5.2004 is void.

2. Now, the instant original application has been filed by the first respondent in the Election Petition No.6/2004 seeking rejecting of the said election petition under Order VII Rule 11(a) of the Code of Civil Procedure.

3. The case of the petitioner is as follows:

(a) The election petition is not maintainable in law. The pleadings in the election petition do not project any cause of action and do not contain any material facts constituting any cause of action and a triable issue. Under the circumstances, the election petition is, therefore, liable to be rejected in limini under Order VII Rule 11(a) C.P.C.

(b) The entire averments in the election petition project only one fact that the petitioner herein had disclosed in Annexure-I of Form No.2A made under Rule 4 of the Conduct of Election Rules, 1961, relating to nomination papers, that he has two spouses and, the said fact taken along with Section 17 of the Hindu Marriage Act and Sec.494 of the I.P.C., would disqualify him from contesting in the election and as such there has been improper acceptance of his nomination to contest for the South Madras Parliamentary Constituency.

(c) The judgment of the Supreme Court in Union of India Vs. Association of Democratic Rules ((2002) 5 SCC 294), relied on by the election petitioner, does not apply to the present facts of the case, and it is totally misquoted. The law laid down by the Supreme Court in the said judgment, is that the Election Commission should require in the exercise of its powers under Article 324 of the Constitution of India, each candidate to submit as a necessary part of his nomination papers, information on an affidavit in respect of items specified by the Supreme Court. The Supreme Court further held that the limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with the elections, the Commission is required to act in conformity with the said provisions. In case where the law is silent, Article 324 is a reservoir of power to act for the avowed purpose having free and fair elections. To put in other words, the Election Commission under Article 324 can only supplement and not supplant the Legislation occupying a particular field. Sec.100 of the Representation of People Act sets out various grounds for declaring an election to be void, and nobody has the powers to add any further grounds in Sec.100. The election petitioner has filed the above said Election Petition to declare the election of the petitioner herein as void on the grounds within the meaning of Sec.80 read with 100(1)(d)(iv) of the Representation of People Act. From the provisions of law under which the election petitioner seeks to have the petitioner's election set aside, it is clear that there should be a non-compliance of either the provisions of the Constitution or of the Representation of People Act or of any rules or orders made under this Act. As regards any orders made under this Act, the Election Commission of India has not been vested with any powers to make any orders under the provisions of the Representation of People Act. It was, therefore, the Supreme Court held in the decision stated supra, that in the absence of any parliamentary legislation occupying a particular field, the Election Commission can issue orders and directions under Article 324 of the Constitution.

(d) In this case, the petitioner had given necessary information as required of him by declaring that he has two spouses living. Therefore, he had complied with the or