- (1.) This is an application by Respondent No. 1 (hereinafter referred to as the returned candidate) who has declared to have been elected as a Member of Legislative Assembly from 217 Lalganj Assembly Constituency in district Azamgarh which had undergone poll on 20th May, 1991, under Sections 86 and 87 of the Representation of Peoples Act, 1951 (for short, the Act) and under Order 6 Rule 16 read with Order 7 Rule 11 of the Code of Civil Procedure (in brevity Code of Criminal Procedure) with a prayer that paragraphs Nos. 22 to 24, 28, 32 to 34, 36 to 41, 43, 44, 47. 48. 54 to 58, 60, 61 and 63 to 65 of the election petition filed by the opposite party No. 1 (hereinafter referred to as the election Petitioner) be struck out and consequently the petition be dismissed in limine with costs.
(2.) The election Petitioner has filed this petition calling in question the election of the returned candidate from the aforesaid constituency on the grounds: (A) that the result of the election insofar as it concerned the returned candidate has been materially affected "by improper reception of void votes and improper acceptance of votes in favour of Respondent No. 1 and noncompliance with the provisions of the Representation of Peoples Act, 1951 and the conduct of the Election Rules 1961" (for short the Rules); (B) that in fact the Petitioner has received majority of valid votes ; (C) that the returned candidate and his agents and workers with his consent "have committed the corrupt practice of booth capturing within the meaning of Section 123(8) of the Representation of Peoples Act and; (D) that but for the votes obtained by the returned candidate by corrupt practice of booth capturing committed by himself and his agents and workers with his consent," the Petitioner has received a greater majority of valid votes. Paragraphs Nos. 22 to 27 of the election petition are said to have contained a concise statement of material fact with regard to grounds 'A' & 'B' and material facts relating to grounds 'C & 'D' are said to stated in paragraphs Nos. 49 to 63.
(3.) By means of this application, the returned candidate has raised a preliminary objection that the election petition be summarily dismissed under Order 6 Rule 16 read with Order 7 Rule 11 Code of Civil Procedure and Sections 86 and for non-compliance with other provisions of the Act, inasmuch as the election petition does not contain a concise statement of material facts with regard to any of the grounds on which the Petitioner relies as required by Section 83(1) of the Act. It is urged by Sri Raja Ram Yadav, learned Counsel for the returned candidate that Section 83 of the Act is mandatory and the election petition is liable to be dismissed summarily for non-compliance thereof On the other hand, the submission of Sri R.C. Srivastava, learned Counsel for the Petitioner is that paragraphs sought to be struck off by the returned candidate, contains complete material facts relating to the grounds set up in the petition and, therefore, the Petitioner can not be dismissed summarily under Order 6 Rule 16 read with Order 7 Rule 11 Code of Civil Procedure and Section 86.;