No Acts & Articles mentioned in this case
AEP(Ld) 29382-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION [Ld.] NO. 29382 OF 2024
IN
ELECTION PETITION NO. 1 OF 2024
ANIL YESHWANT DESAI
SHIV SENA (UBT)
Age – 66 years, Occupation - Ex.Mp Rs.
Flat No. 101, Peacock Palace,
Bhulabhai Desai Road,
Breach Candy, Mumbai 400026.
)
)
)
)
)
)...Applicant.
In the matter between :
MAHENDRA TULSHIRAM BHINGARDIVE
RIGHT TO RECALL PARTY
Age - 48 years, Occupation – Advocate,
Adhar CHS Ltd., Flat - 301, A-Wing,
MMRDA Colony, Panjarapol,
Gautam Nagar, Din- Quarry Road,
Deonar, Mumbai-400088.
)
)
)
)
)
)
)...Petitioner.
Versus
1.ANIL YESHWANT DESAI
SHIV SENA (UBT)
Age – 66years, Occupation - Ex.Mp Rs.
Flat No. 101, Peacock Palace,
Bhulabhai Desai Road,
Breach Candy, Mumbai 400026.
)
)
)
)
)
)
2.RAHUL RAMESH SHEWALE
SHIV SENA (ES)
Age – 51 years, Occupation - Ex.MP LS.
10-B/12, Shivtirth, Opp. New Mandala
Gate No. 6, Sion Trombay Road,
Mankhurd, Mumbai 400088.
)
)
)
)
)
)
3.VIDYASAGAR BHIMRAO VIDYGAR
BHAUJAN SAMAJ PARTY
Age - 49 years, Occupation –
Civil Contractor, Ashwagandha CHS Ltd.,
Room No. 406, 4
th
Floor,
Near Mankhurd Police Station,
)
)
)
)
)
)
Patil-SR (ch) 1 of 33 2024:BHC-OS:16410
AEP(Ld) 29382-24.doc
Mankhurd, Mumbai – 400043. )
4.ABUL HASAN KHAN
VANCHIT BAHJUN PARTY
Age - 53 years, Occupation - Business,
Sabina Apartment, Flat No.101,
1
st
Floor, Netaji Palkar Marg,
Ghatkopar (West), Mumbai – 400084.
)
)
)
)
)
)
5.DR. ARJUN MAHADEV MURUDKAR
BHARTIYA JAWAN KISAN PARTY
Age - 77 years, Occupation - Retired
JMFC, 1502, 1, O.S. SR Lt. Dilip Gupte
Marg, Near Hotel Goa Portugise,
Matunga (West), Mumbai 400016.
)
)
)
)
)
)
6.ISHWAR VILAS TATHAWADE
RASHTRIYA MAHASWARAJ BHUMI PARTY
Age – 47 years, Occupation - Reporter
Someshwar CHS Ltd., Flat No.404/4,
A/2, Yamuna, Khamdev Nagar,
Joglekarnala, Sant Rohidas Marg,
Dharavi, Mumbai – 400017.
)
)
)
)
)
)
)
7.KARAM HUSSAIN KITABULLAH KHAN,
PEACE PARTY
Age-51 years, Occupation-Business,
UAC-348, Building No. 14, GTB Nagar,
Punjabi Colony, Sion- Koliwada, Antop Hill,
Mumbai 400037.
)
)
)
)
)
)
8.JAHID ALI NASIR AHMED SHAIKH
AZAD SAMAJ PARTY (KASHIRAAM)
Age - 37 years, Occupation - Business,
Room No.394, Sundaram,
Sant Kankayya Marg, Dharavi,
Mumbai 400017.
)
)
)
)
)
)
9.DEEPAK M. CHAUGULE
BAHUJAN REPUBLIC SOCIAL PARTY
Age - 36 years, Occupation – PVT Service,
MMM 324, Chakrawarti Mitra Mandal
Suddhudhan Chawl, Mukund Nagar,
Chembur (West), Mumbai – 400089.
)
)
)
)
)
)
10.SAEED AHMED ABDUL WAHID CHOUDHARY
SOCIAL DEMOCRATIC PARTY OF INDIA,
Age – 49 years,
Occupation- Business,
Room No.523, SVP,
)
)
)
)
)
Patil-SR (ch) 2 of 33
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Near Railway Colony Mahul,
Vashi Naka, FCI, Chembur, Mumbai.
)
)
11.ASHWINI KUMAR PATHAK
INDEPENDENT
Age – 39 years, Occupation – Advocate,
305, Mahatma Fule Wadi,
Korba Mithagar, Wadala (East),
Mumbai 400037.
)
)
)
)
)
)
12.AKASH LAXMAN KHARATMAL
INDEPENDENT
Age – 62 years, Occupation – BMC Retired,
New Municipal Chawl, Chawl No. 6,
Room No. 55, Sant Kankayya Marg,
Dharavi, Mumbai 400017.
)
)
)
)
)
)
13.VIVEK YASHWANT PATIL
INDEPENDENT
Age – 61 years, Occupation – Activist
Brother’s Society, Room No. A-26,
Bhatiya Building,
Lt. Dilip Gupta Path, Mahim,
Mumbai – 400016.
)
)
)
)
)
)
)
14.SANTOSH PUNJIRAM SANJKAR
INDEPENDENT
Age – 48 years, Occupation – Advocate
Ashtvinayak Shakari Gruhnirman Santha,
Building No. 168, Room No. 704,
Opp. Tilak Nagar Police Station,
Chembur, Mumbai 400089.
)
)
)
)
)
)
)
15.ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road,
New Delhi – 110001.
)
)
)...Respondents.
——————
Mr. Devdatt Kamat, Senior Advocate along with Mr. Ankit Lohia, Mr. Rubin Vakil,
Mr. Rishit Vimaldalal., Mr. Harsh Pandey, Mr. Manish Doshi, Heena T, Ms. Isha
Thakur, Gunjan Doiphode i/b Vimaldalal & Co., for the Applicant.
Mr. Mahendra T. Bhingardive, Petitioner in-person.
Ms. Iraa Dube Patil i/b Jay & Co., for the Respondent No. 3.
Mr. Abhijit P. Kulkarni, Mr. Gaurav Shahane, Mr. Shreyas Zarkar for the
Respondent No. 15.
——————
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Coram : Sharmila U. Deshmukh, J.
Reserved on : October 8, 2024
Pronounced on : October 15, 2024.
ORDER :
1.The present application has been preferred by the returned
candidate, who is arraigned as Respondent No.1 in the Election
Petition, under Order VII Rule 11(a) of The Code of Civil Procedure,
1908 [for short, “CPC”] read with Sections 81 and 82 of the
Representation of the People Act, 1951 [for short “RP Act”] seeking
dismissal of Election Petition for non disclosure of cause of action.
RELEVANT PLEADINGS IN ELECTION PETITION:
2.The present Election Petition seeks a declaration that the
nomination papers of the returned candidate as well as other
candidates who had contested the election be declared as invalid, null
and void as being defective, incomplete and invalid nomination papers
and for an order declaring the Petitioner as elected candidate in the
General Elections-2024 from the South Central Mumbai Parliamentary
Constituency as per Sections 84 and 101 of the RP Act.
3.The allegations set out in paragraph 11 of the Election Petition in
respect of the nomination papers of Respondent No.1-returned
candidate are that oral objections were raised by the Petitioner during
the scrutiny of the nomination papers- Affidavit (Form 26) as there
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were few blank columns, signature was missing on the reverse of
stamp paper and wrong information and incomplete information has
been given in the Affidavit (Form 26). It is further alleged that the
Returning Officer instructed the Petitioner to give his objections in
writing and without giving any opportunity to furnish his written
objections accepted the incomplete nomination papers of the
returned candidate. It is further alleged that though the Respondent
No.1 had filed 3 nomination papers only one single Affidavit (Form 26)
was uploaded on the Election Commission of India’s website by the
Returning Officer.
4.Allegations of similar nature as regards blank columns,
uploading of the Affidavit Form 26 multiple times on the website, no
signature on reverse side of the stamp paper etc were made in respect
of the nomination papers filed by the other 13 contesting candidates
alleging that those were incomplete and defective and wrongfully and
improperly accepted by the Returning Officer.
5.The objections as regards the present Applicant is given in
tabular form in paragraph 16 of the Election Petition is reproduced
below :
Candidate / the Respondent No. 1:
Shri. Anil Yashwant Desai.
Party : Shiv Sena (Uddhav Balasaheb Thakkre)
Point No’s. Objections.
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Part A Affidavit Form 26 (stamp paper back side not signed
by the candidate as per the guideline given) every
page need to be signed.
Point No.4 Table 4
th
Column wordings (as on 31
st
March) is
missing.
Point No.7B(iv) Residential Building heading
i. Dependent No.1 (daughter Ms. Rima Anil Desai)
information wrongly mentioned as Not Applicable
even though she had 20% share in the Residential Flat
No.101, Peacock Palace.
ii. Approximate Current Market Value heading – 4
Column’s kept Blank (i.e., HUF, Dep 1, Dep2 and Dep3.)
Part B
Serious ObjectionAffidavit Form 26, stamp paper bearing No.02B
647896, stamp vendor serial No. 325 (written on
back of stamp paper) issued on 24.04.2024 is
uploaded 3 times on Election Commission of India
website, showing Uploading time on Election
Commission site.
1
st
Affidavit uploading time – 17:09:38; same stamp
paper No. 02AB647896.
2
nd
Affidavit uploading time – 17:19:08; same stamp
paper No. 02AB647896.
3
rd
Affidavit uploading time – 17:21:35; same stamp
paper No. 02AB647896.
APPLICATION UNDER ORDER VII RULE 11:
6.The application seeks dismissal of the Election Petition under
Order VII Rule 11(a) of CPC for non-disclosure of cause of action read
with Section 86 of RP Act for non-compliance with Sections 81 and 82
of RP Act majorly on the following grounds:
(a)Exhibit “G” to the Petition which is Affidavit (Form 26) of the
Applicant has been verified by Petitioner as true copy,
however there are interpolations on the document made by
the Petitioner himself;
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(b) For rejection of nomination papers under Section 36(4) of
the RP Act, the defects have to be demonstrated to be of
substantial nature by making a positive assertion in the
Petition, which pleading is absent in the present Petition;
(c)Under sub clauses (i) to (iv) of Section 100(1)(d) of the RP
Act, the election of a returned candidate can be declared
void only if the result of election has been materially
affected by any of the circumstances set out in those
subclauses and therefore the petition must necessarily
contain a pleading that the alleged improper acceptance of
nomination papers or the alleged non compliance with the
provisions of Constitution or RP Act or any Rules or orders
made under the RP Act has materially affected the election
of the Returned Candidate, which is absent in the present
case;
(d)None of the alleged defects set out in paragraph 16 of the
election petition are of substantial nature and there are no
material facts pleaded;
(e)Under Section 81(1) of the RP Act, the election petition can
be presented only on one or more of the grounds specified
in Section 100(1) or Section 101 of RP Act and the petition
does not set out any such ground;
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(f)Section 83 of the RP Act prescribes that the contents of
election petition referred to in Section 81 of RP Act shall
comply with the provisions prescribed in Section 83 of RP
Act and the present petition does not set out the material
facts to form the basis of any alleged grounds for setting
aside the election.
AFFIDAVIT IN REPLY :
7.The reply contends that certain objections were raised in respect
of Exhibit “G” not being true copy and it is admitted the markings were
done by the Petitioner himself and the same was accidentally attached
to the Petition and thus marked as true copy under the signature of
Petitioner. There is substantial compliance of Section 81 of RP Act and
the true copies of Affidavit (Form 26) are identical with the copies
uploaded on the Election Commission of India’s website. The defect is
curable and will not prejudice the defence of the Respondents.
8.It is further contended that keeping blank columns in the
Affidavit (Form 26) is a defect of substantial nature and acceptance of
the said affidavit by the Returning Officer gives rise to a cause of
action which is mentioned in the Election Petition.
SUBMISSIONS:
9.Mr. Kamat, learned Senior Advocate appearing for the Applicant-
Returned Candidate would submit that the Petitioner has secured
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1,444 votes in 2024 Lok Sabha elections and by present petition seeks
invalidation of the nomination papers of the Returned Candidate who
secured 3,95,138 votes and also of other contesting candidates. He
would further submit that the Election Petition does not comply with
Section 84 of the RP Act as the Petition does not seek a declaration
that the election of the Returned Candidates is void. He would further
submit that the Election Petition is non compliant with Section 82 of
the RP Act as apart from the parties mentioned in Section 82 of RP Act,
the Election Commission of India is added as party Respondent, being
Respondent No.15, and therefore the petition deserves to be
dismissed under Section 86 of the RP Act. According to Mr. Kamat, the
absence of pleading of material facts to demonstrate that the election
has been materially affected by improper acceptance of the
nomination papers constitutes a fatal and incurable defect going to
the root of the matter.
10.He would further submit that in case of an election being
contested by more than two candidates, if the nomination of
candidates other than the returned candidate is found to have been
improperly accepted, it is essential for the Election Petitioner to plead
and prove that the votes polled in favour of such candidates would
have been polled in his favour. He submits that there are no such
pleadings in the present case.
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11.He has taken this Court through the alleged defects in Affidavit
Form 26 as pleaded and would submit that there is compliance with the
applicable rules and there is no defect whatsoever. He would further
submit that assuming Affidavit Form 26 suffered from defects, unless
they are shown to be of substantial character by positive assertion,
there cannot be invalidation of election and what has to be seen is
substantial compliance with the requirement of the Form.
12.He has taken this Court one by one through the alleged defects
and has responded to each one of them substantiating that the same
do not constitute any defect much less defect of substantial character.
As regards the objection of uploading of one affidavit whereas there
are 3 nominations filed by the returned candidate, he submits that as
per Clause 1.3 read with clause 5.20.3 of the Handbook for Returning
Officer 2023 the uploading of affidavit on the website of Election
Commission of India is not done by the candidate but done by the
Returning Officer himself and illegality, if any, in uploading the
document cannot be construed as a defect in the submission of
nomination papers by the said candidate. In support of his contentions
he relies upon the following decisions:
[a] Jyoti Basu v. Debi Ghosal
1
[b] Dharmin Bai Kashyap v. Babli Sahu
2
1 [(1982) 1 SCC 691]
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[c] Mangani Lal Mandal v. Bishnu Deo Bhandari
3
[d] Shambhu Prasad Sharma v. Charandas Mahant
4
[e] Mairembam Prithviraj v. Pukhrem Sharatchandra Singh
5
[f] Kanimozhi Karunanidhi v. A. Santhana Kumar
6
[g] Karim Uddin Barbhuya v. Aminul Haque Laskar
7
[h] Karikho Kri v. Nuney Tayang
8
[i] Satya Narain v. Dhuja Ram
9
[j] Ramgareb v. Ajay Arjun Singh
10
13.On the aspect of amendment application filed separately by the
Petitioner, he submits that the copy of amended petition will have to
be supplied to the Applicant as a sequitur of allowing the interim
application which will be beyond the period of limitation for
questioning the election and therefore the interim application also
cannot be allowed.
14.Mr. Bhingardive, Petitioner in-person would point out that Clause
4.5 of the Handbook for Candidate, 2023 provides for rejection of
nomination paper if the candidate fails to furnish nomination papers
and the affidavit in the prescribed format, and where the columns are
kept blank in the affidavit and fresh affidavit not filed in spite of
2 [(2023) 10 SCC 461];
3 [(2012) 3 SCC 314]
4 [(2012) 11 SCC 390]
5 [(2017) 2 SCC 487]
6 [2023 SCC OnLine SC 573]
7 [2024 SCC OnLine SC 509]
8 [2024 SCC OnLine SC 519]
9 [(1974) 4 SCC 237]
10 [MP High Court’s order dtd 22-8-2024 in E.P. No. 6 of 2024.]
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notice. He would therefore submit that as there were blanks in the
Affidavit (Form 26) there is a cause of action and the election petition
cannot be dismissed under Order 7 Rule 11(a) of CPC.
REASONS AND ANALYSIS:
STATUTORY FRAMEWORK:
15.Before turning to the facts of the present case, it will be
apposite to have a look at the statutory provisions contained in Part-VI
of the RP Act which deals with disputes regarding Elections. Section 80
of the RP Act provides that no election shall be called in question
except by an election petition presented in accordance with the
provisions of Part-VI. Section 81, 82, 83, 86 and 100 of RP Act reads as
under:
“81. Presentation of petitions.—(1) An election petition
calling in question any election may be presented on one or
more of the grounds specified in sub-section (1) of section
100 and section 101 to the High Court by any candidate at
such election or any elector within forty-five days from, but
not earlier than the date of election of the returned
candidate, or if there are more than one returned
candidate at the election and the dates of their election are
different, the later of those two dates.”
“82. Parties to the petition.— A petitioner shall join as
respondents to his petition—
(a) where the petitioner, in addition to claiming a
declaration that the election of all or any of the returned
candidates is void, claims a further declaration that he
himself or any other candidate has been duly elected, all
the contesting candidates other than the petitioner, and
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where no such further declaration is claimed, all the
returned candidates; and
(b) any other candidate against whom allegations of any
corrupt practice are made in the petition.”
“83. Contents of petition.—(1) An election petition—
(a) shall contain a concise statement of the material facts
on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of
the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the allegation
of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the same manner
as the petition.”
“86. Trial of election petitions.— (1) The High Court shall
dismiss an election petition which does not comply with
the provisions of section 81 or section 82 or section 117.
Explanation.—An order of the High Court dismissing an
election petition under this sub-section shall be deemed to
be an order made under clause (a) of section 98.
(2) …...
(3)…
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(4) ….
(5) ….
(6) ….
(7) …..”
“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 or 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
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
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orders made under this Act, the High Court shall
declare the election of the returned candidate to
be void
(2) If in the opinion of the High Court, a returned
candidate has been guilty by an agent, other than his
election agent, of any corrupt practice but the High Court is
satisfied—
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and
every such corrupt practice was committed contrary to
the orders, and without the consent, of the candidate
or his election agent;
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of
corrupt practices at the election; and
(d) that in all other respects the election was free
from any corrupt practice on the part of the candidate
or any of his agents, then the High Court may decide
that the election of the returned candidate is not
void.”
16.The statutory framework that emerges from the provisions
reproduced above is that for the purpose of declaring an election to be
void, on the grounds as set out in Sub-Section (1) of Section 100 of RP
Act, a Petition is to be presented to the High Court within a period of
forty five days from the date of election containing a concise
statement of material facts on which the Petitioner relies, which
Petition shall implead as parties all the contesting candidates where
the Petitioner seeks a declaration that he himself or another
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candidates has been duly elected and otherwise the Returned
Candidate. Section 86 of RP Act provides for dismissal of the Petition
for non compliance with the provisions of Section 81 or Section 82 or
Section 117. Section 117 provides for security deposit for costs of the
Petition.
17.Relevant for our purpose is to note that Section 100(1)(d) of RP
Act provides for declaration of the election of returned candidate to be
void where there is improper acceptance of any nomination or non
compliance with the provisions of the Constitution or of the RP Act or
of rules or orders made under the RP Act which has the effect of
materially affecting the result of election.
NON DISCLOSURE OF CAUSE OF ACTION:
18.Reverting to the present application, filed under Order VII Rule
11(a) of CPC, the same seeks rejection of plaint for non disclosure of
cause of action. Section 81 restricts the challenge to any election only
on the grounds set out in Section 100(1) and Section 101 of RP Act. In
the present Petition, the cause of action for questioning the election
are the grounds under sub clauses (i) and (iv) of Clause (d) of Sub
Section (1) of Section 100 of RP Act by reason of improper acceptance
of the nomination of not only the Returned Candidate but also of all
the contesting candidate and for non-compliance with the provisions of
the Act and Rules.
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19.The specific contention of Mr. Kamat is that the absence of
positive assertion in the Petition demonstrating that by virtue of the
alleged improper acceptance of any nomination or non compliance
with the provisions, the election of the returned candidate has been
materially affected, is fatal to the Petition. Before examining the
pleadings in the election petition, it will be apposite to have a look at
the judicial pronouncements on the subject.
20.In Mangani Lal Mandal (supra) the Apex Court was considering
the case where the election of returned candidate was challenged on
the ground that there was a suppression of information about the
returned candidate having two wives and dependent children from his
first wife in the affidavit filed and the challenge was brought under
Section 100(1)(d)(iv) of the RP Act. The Apex Court held in paragraph
11 as under:
“A mere non compliance or breach of the Constitution or the
statutory provisions noticed above, by itself, does not result in
invalidating the election of a returned candidate under Section
100(1)(d)(iv). The sine qua non for declaring the election of
returned candidate to be void under Clause (iv) of Section
100(1)(d) of RP Act, is further proof of the fact that such
breach or non observance has resulted in materially affecting
the result of the returned candidate. In other words, the
violation or breach or non observation or non compliance with
the provisions of Constitution or 1951 Act or the rules or the
orders made thereunder, by itself, does not render the election
of a returned candidate void Section 100(1)(d)(iv). For the
election petitioner to succeed on such ground viz Section
100(1)(d)(iv), he has not only to plead and prove the ground
but also that the result of the election in so far as it concerned
the returned candidate has been materially affected. The view
that we have taken finds support from three decisions of this
Court in (1) Jabar Singh vs Genda Lal (2) L.R. Shivaramagowda vs
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T.M. Chandrashekhar and (3) Uma Ballav Rath vs Maheshwar
Mohanty.” (Emphasis supplied).
21.The Apex Court in that case expressed surprise about the
decision of the High Court and further held that as a matter of law, the
election petition filed by the election petitioner deserved dismissal at
the threshold yet it went into whole trial consuming precious time and
putting the returned candidate to unnecessary trouble and
inconvenience.
22.In Kanimozhi Karunanidhi (supra) the Apex Court after
considering the provisions of RP Act noted the decision in the case of
Ram Sukh v. Dinesh Aggarwal
11
in the context of Section 100(1)(d)(iv)
of the RP Act where it was observed that it is necessary for the election
Petitioner to aver specifically in what manner the result of election
insofar as it concerns the returned candidate was materially affected
due to the omission on the part of Returning Officer and as the
averments were missing in the election petition, the rejection of
election petition at the threshold was upheld.
23.In the case of Karim Uddin Barbhuya (supra) the Apex Court held
in paragraph 22 to 24 as under:
“22. So far as the ground contained in clause (d) of
Section 100(1) of the Act, with regard to improper
acceptance of the nomination of the Appellant is concerned,
there is not a single averment made in the Election Petition
as to how the result of the election, in so far as the appellant
11 [AIR 2010 SC 1227]
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was concerned, was materially affected by improper
acceptance of his nomination, so as to constitute a cause of
action under Section 100(1)(d)(i) of the Act. Though it is true
that the Election Petitioner is not required to state as to how
corrupt practice had materially affected the result of the
election, nonetheless it is mandatory to state when the
clause (d)(i) of Section 100(1) is invoked as to how the result
of election was materially affected by improper acceptance
of the nomination form of the Appellant.
23. As transpiring from the Election Petition, the
respondent no. 1 himself had not raised any objection in
writing against the nomination filed by the Appellant, at the
time of scrutiny made by the Returning Officer under Section
36 of the Act. According to him, he had raised oral objection
with regard to the education qualification stated by the
Appellant in the Affidavit in Form-26. If he could make oral
objection, he could as well, have made objection in writing
against the acceptance of nomination of the Appellant,
and in that case the Returning Officer would have decided his
objection under sub-section (2) of Section 36, after holding a
summary inquiry. Even if it is accepted that he had raised an
oral objection with regard to the educational qualification of
the Appellant before the Returning Officer at the time of
scrutiny, the respondent no.1 has failed to make averment in
the Election Petition as to how Appellant’s nomination was
liable to be rejected by the Returning Officer on the grounds
mentioned in Section 36(2) of the Act, so as to make his case
fall under clause (d)(i) of Section 100(1) that there was
improper acceptance of the nomination of the Appellant. The
non-mentioning of the particulars as to how such improper
acceptance of nomination had materially affected the result
of the election, is apparent on the face of the Election
Petition.
24. As stated earlier, in Election Petition, the pleadings
have to be precise, specific and unambiguous. If the
allegations contained in Election Petition do not set out
grounds as contemplated in Section 100 and do not conform
to the requirement of Section 81 and 83 of the Act, the
Election Petition is liable to be rejected under Order VII, Rule
11 of CPC. An omission of a single material fact leading to an
incomplete cause of action or omission to contain a concise
statement of material facts on which the Election petitioner
relies for establishing a cause of action, would entail
rejection of Election Petition under Order VII Rule 11 read
with Section 83 and 87 of the RP Act.”
24.In the case of Mairembam Prithviraj (supra) the Apex Court
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noted the the decision in the case of Durai Muthuswami v. N.
Nachiappan
12
in which case there were only two contesting candidates
and the Apex Court held that in such event it is not necessary to allege
that the result of the election inso far as it concerns the returned
candidate has been materially affected. However, where there are
more than two contesting candidates and nomination of one of the
defeated candidates had been improperly accepted, it is necessary for
the person challenging the election not merely to allege but also to
prove that the result of election had been materially affected by the
improper acceptance of the nomination of other defeated candidate.
The Bench in Mairembam Prithviraj (supra) held that there is a
difference between improper acceptance of nomination of returned
candidate and improper acceptance of nomination of any other
candidate. There is also a difference between cases where there are
only 2 candidates in the fray and a situation where there are more than
2 candidates contesting the election. If the nomination of a candidate
other than the returned candidate is found to have been improperly
accepted, it is essential that the Election Petitioner has to plead and
prove that the votes polled in favour of such candidate would have
been polled in his favour. On the other hand, if the improper
acceptance of nomination is of the returned candidate there is no
12 [(1973) 2 SCC 45].
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necessity of proof that the election has been materially affected as
returned candidate would not have been able to contest the election if
his nomination was not accepted. It is not necessary for the
Respondent to prove that the result of election in so far as it concerns
the returned candidate has been materially affected by the improper
acceptance of his nomination as there were only 2 candidates in that
case contesting the election and if the Appellant’s nomination is
declared to have been improperly accepted his election would have to
be set aside without any further inquiry and the only candidate left in
the fray is entitled to be declared elected.
25.In the case of Mahadeorao Sukaji Shivnakar v. Ramratan Bapu
13
the Apex Court held that the material facts are all basic and primary
facts which must be proved at trial by the party to establish the
existence of cause of action or defence and must be stated in a
pleading by the party. The cause of action should be specifically
mentioned in the election petition.
26.Bearing in mind the aforestated settled legal position, I have
minutely gone through the pleadings in the Petition. Paragraphs 11
and 13 of the Petition set out the allegations against the Returning
Officer for not dealing with the oral objections raised by the Petitioner
to the Nomination papers- Affidavit (Form 26) of the Returned
13 [(2004) 7 SCC 181]
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Candidate. Paragraph 16 of the Petition pleads the alleged defects in
the Affidavit (Form 26) of the Returned Candidate and the contesting
candidates. After alleging that the nomination papers of the Returned
Candidate were defective and incomplete, the Petition sets out in
tabular form the alleged defects in Affidavit Form 26. Upon my
reading of the entire petition, there is not even a whisper as to the
manner in which the improper acceptance of nomination has materially
affected the election. A pleading in that respect is essential to disclose
a cause of action for questioning the election. To constitute a cause of
action under Section 100(1)(d)(i) and (iv), there has to be satisfaction
of twin requirement. Firstly, that there has been an improper
acceptance of nomination papers and non compliance with the
Constitution or the statutory provisions or Rules or orders and
secondly that the same has resulted in the election results being
materially affected. For showing improper acceptance of the
nomination papers, there has to be a pleading of material facts in the
Petition to demonstrate that the concerned candidates nomination
was liable to be rejected by the Returning Officer on the grounds
mentioned in Section 36(2) of the Act so as to constitute cause of
action under Section 100(1)(d)(i) and to plead and establish that the
same has resulted in materially affecting the result of the election. In
the present case, the Petition is completely silent on both the aspects.
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De-hors any pleading on material facts, the petition does not disclose
any cause of action.
DEFECTS ALLEGED NOT OF SUBSTANTIAL NATURE:
27.Sub Section (4) of Section 36 prohibits the rejection of
nomination paper except where the defect is of substantial character.
The defects alleged are as regards the Affidavit -Form 26 filed by the
candidates including the Returned Candidate alongwith the
nomination paper, which is required to be in the format prescribed by
Rule 4A of The Conduct of Election Rules, 1961.
28.To attract the consequence of rejection of nomination paper by
the Returning Officer, the defects alleged in Affidavit Form 26 have to
shown to be of substantial character by necessary pleadings in that
respect. In the present case, only the alleged defects are set out in
tabular form without any supporting pleading to substantiate that the
alleged defects are of substantial character for it is not each and every
lapse or defect which will lead to rejection of nomination. Despite the
petition being de hors any pleading on material facts, I have considered
the alleged defects as reproduced in the Petition in tabular form ad
seriatim.
(a) The Affidavit (Form 26) is not signed by the candidate;
(b) In the 4
th
column of Point No. 4, the words “as on 31
st
March” are missing;
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(c) In Point No.7B(iv), information in respect of immovable
property of the Dependent is shown as “Not Applicable” whereas
the returned candidate’s daughter has 20% share in the residential
flat; similarly the “approximate market value” columns have been
kept blank as far as the HUF and Dependents are concerned;
(d) Affidavit (Form 26) was uploaded thrice on the website of
Election Commission of India.
29.As far as the reverse of the stamp paper not being signed by the
candidate, the reverse of the stamp paper has the stamp of General
Stamp Officer and does not contain any information filled in by the
candidate. Even if it is accepted that every page is required to be
signed, the same would essentially apply to the pages which contains
any information filled in by the candidate.
30.As regards the words “31
st
March” missing from Point No. 4 of
Form 26, in the heading of the 4
th
column of Point No 4, as per the RP
Act publication by “Law and Justice Publishing” of the year 2023, the
prescribed Form 26 does not contain any such words in Column 4 of
Point 4. In any event, in the 4
th
Column the Returned Candidate has
given the details of the income shown in the income tax returns for the
last 5 financial years and refers to financial years 2018-19 upto financial
year 2022-23. Considering that the reference is to the financial year,
the mere non reproduction of the words “as on 31
st
March” does not
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make any difference. Most pertinently in Point No 4, the Column of
HUF and Dependents are filled in as “Not Applicable” indicating that
there is no HUF and no Dependents in light of the definition of the
expression “Dependent” being defined in Point No 7 as a person who
has no separate means of income and who is Dependent on the
candidate for their livelihood. The same assumes significance while
considering the details as regards the immovable assets included in
Point No.7B(iv).
31.The next objection in respect of Point 7B(iv) is that although the
daughter of the Returned Candidate is having 20% share in residential
flat, in dependent column, the same is mentioned as “Not Applicable”.
Considering that in Point 4, the Returned Candidate has stated that
there are no dependents, there is no question of dependent’s share in
the immovable property to be filled in the dependent’s column
particularly when in the 1
st
Column of Point 7B(iv), pertaining to the
self owned property, the residential flat is shown to be jointly owned
by the Returned Candidate along with the spouse and the daughter.
Similarly, as regards the approximate current value, which is also
forming part of Point No. 7B, as there were no HUF and Dependents,
the columns have been left blank and the approximate value has been
shown in the column related to self and spouse.
32.Although upon a holistic perusal of Affidavit Form 26 in light of
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the objections raised, I am of the opinion that there are no defects in
Affidavit Form 26, even assuming them to be defects, to entail the
rejection of nomination papers, the defects have to be of a substantial
character. As to what would constitute defect of substantial character
so as to taint the nomination has been subject matter of several
decisions referred hereinunder.
33.In the case of Ramgareb v. Ajay Arjun Singh (supra) the High
Court of Madhya Pradesh was considering an issue where the correct
and complete information was alleged to not have been furnished at
the time of submission of nomination papers as well as in the affidavit
submitted in Form 26 as there were certain blank columns kept in the
nomination papers. The High Court held that mere minor differences
in the nomination paper or non disclosure of some information
regarding dues cannot be said to be a substantial defect so as to
materially affect the result of election.
34.In the case of Karikho Kri (supra) there was non disclosure as
regards certain motorcycles owned by the returned candidate. The
Apex Court considered the issue as what would be the defects that
would taint a nomination to the extent of rendering its acceptance
improper. The Apex Court held that whether the non disclosure
amounts to a material lapse impacting election of the returned
candidate would depend on the facts and circumstances of each case.
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The Apex Court held that every defect in the nomination cannot
straight away be termed to be of such character as to render its
acceptance improper and each case would have to turn on its own
individual facts in so far as that aspect is concerned. The very fact that
Section 36(4) of the RP Act speaks of the Returning Officer not
rejecting a nomination unless he is of the opinion that the defect is of
substantial nature demonstrates that the distinction must always be
kept in mind and there is no absolute mandate that every non
disclosure irrespective of its gravity and impact would automatically
amount to a defect of substantial nature thereby materially affecting
the result of election or amounting to undue influence so as to qualify
as a corrupt practice. The Apex Court in that case did not accept the
blanket proposition that a candidate is required to lay his life out
threadbare for examination by the electorate and every case will have
to turn on its own peculiarities as to when non disclosure of each and
every asset owned by a candidate would amount to a defect of
substantial character. In that case, the well settled proposition was
reiterated that it is necessary for the election Petitioner to plead that
the result of election in so far as it concerns the returned candidate has
been materially affected by the alleged non compliance with the
provisions of Constitution or the RP Act and the failure to plead such
material facts would be fatal to the election petition.
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35.In Shambhu Prasad Sharma (supra) the Apex Court observed
that the election petition did not make any averment, leave alone
disclose any material fact and the objections were thus in the nature of
an objection to the form rather than to the substance of affidavit. The
Apex Court held that the form of nomination paper is not considered
sacrosanct and every departure from the prescribed format cannot
therefore be a ground for rejection of the nomination paper.
36.In the present case, the Returning Officer had scrutinized the
nomination form and the Affidavit and accepted the same without
finding any defect of substantial character. It is evident that the whole
purpose of filing an affidavit is to make known to the electorate, the
criminal antecedents, assets and liabilities as well as the educational
qualification of contesting candidate so as to enable the voters to take
an informed decision. It is not the case of the Petitioner that by reason
of the blanks / non supply of information, there has been suppression
of any information or any wrong information has been put in public
domain. In the present case, the Petition does not have a single
averment as to how the alleged lapses/defects are of substantial
character and has resulted in violation of fundamental right of the
citizen to know the true facts and information of the contesting
candidate. It was necessary to plead the consequence of alleged
defects impacting the information which is required to be put in public
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domain by the contesting candidate.
37.The Petition alleges that the Returned Candidate had filed three
nomination papers and only one Affidavit Form 26, which was
uploaded thrice on Election Commissioner website. Section 33(6) of
the RP Act provides that there is no bar to a candidate for being
nominated by more than one nomination paper. Mr. Kamat is right in
pointing out the Handbook for the Returning Officer which provides in
Clause 1.3 that it is the duty of Returning Officer to publish the
affidavits of candidates and to display the copies of nomination papers
and affidavits on the notice board on the same day on which the
nomination has been filed. The objection to the uploading of affidavits
3 times cannot constitute a ground for improper acceptance of the
nomination paper so as to materially affect the result of election. The
allegation is that 3 nomination papers were filed but only one affidavit
has been uploaded. There is no provision pointed out to this Court that
along with every nomination paper there has to be a separate affidavit.
In fact there is no pleading that only one Affidavit was filed in respect
of three nomination papers. The allegation is that only one affidavit
was uploaded on the Election Commission of India’s website thrice by
the Returning Officer, in which case the default was on the part of
Returning Officer and not of the candidate.
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NON COMPLIANCE OF SECTION 81 OF RP ACT:
38.Coming to the requirement of Section 81 of RP Act, Section 81
provides that the election petition may be presented on one or more
of the grounds specified in Sub-Section (1) of Section 100 and Section
101 to the High Court within period of 45 days and Section 83 provides
that the Petition shall contain a concise statement of material facts on
which the Petitioner relies. Section 83 when read conjointly with
Section 81 of RP Act, the position that emerges is that the Election
Petition should contain the facts which are material to demonstrate
the cause of action on grounds specified under Sub-Section (1) of
Section 100 of RP Act. The Petition in present case not pleading
material facts, constitutes non compliance of Section 81 of RP Act
entailing consequence of dismissal under Section 86 of RP Act.
39.Further, the Petitioner has not sought any relief that the election
of returned candidate be declared as void and the only relief sought is
an order declaring as null and void the nomination papers of the
returned candidate and other contesting candidates. The provisions of
Section 81 of the RP Act provides that the election can be called into
question within a period of 45 days from the date of election of the
returned candidate. As in the present case there is no relief seeking
declaration of the election being void, after the expiry of period of 45
days, the Petition cannot be amended to seek the declaration. Without
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calling in question the election, the petition could not have been filed
under Section 81 of RP Act.
40.In the case of Jyoti Basu (supra) while dealing with an election
petition, the Apex Court considered the provisions of RP Act and held
that a right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a common law
right. 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
proceeding to which neither the common law nor the principles of
equity apply but only those rules which the statute makes and applies.
41.There thus has to be strict compliance with the requirements of
the statutory provisions as outside the statutory provisions there is no
right to dispute an election. The RP Act has been held to be a
complete and self contained code within which must be found any right
claimed in relation to an election or election dispute. Considering that
in an election petition, pleadings have to be specific, precise and
unambiguous as contemplated by Section 83 of the RP Act, if the
election petition does not disclose a cause of action it is liable to be
dismissed in limine.
42.Upon meaningful reading of the Petition, in my view, the Petition
does not disclose cause of action under Section 100(1)(d) (i) and (iv) of
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RP Act to maintain the Election Petition and is also liable to be rejected
for non-compliance of Section 81 for the following reasons :
(a) There is no pleading of material facts in the Petition to
demonstrate that by reason of alleged defects pleaded, the
Returned Candidate’s nomination was liable to be rejected by
the Returning Officer under Section 36(2) of RP Act so as to
constitute cause of action under Section 100(1)(d)(i) and (iv) of
RP Act.
(b) There is no averment in the Petition as to the manner in
which by reason of improper acceptance of the nomination
paper of the Returned Candidate, the result of the Election has
been materially affected.
(c) The pleadings do not make out a case that the alleged
defects in Affidavit Form 26 are of substantial character so as
to be rejected by the Returning Officer under Section 36(3) of
RP Act.
(d) Section 83 of RP Act requires the Election Petition to
contain a concise statement of material facts. In absence of
material facts being pleaded in the Petition, the provisions of
Section 81 which provides for presentation of Election Petition
on the grounds set out in Sub-Section (1) of Section 100 and
Section 101 of RP Act, the Petition is non-compliant with
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Section 81 of RP Act entailing dismissal of the Petition under
Section 86 of RP Act.
(e) There is no declaration sought that the election be
declared void and in absence of any such declaration, it cannot
be said that the Petition questions the Election and the
Petition is non-compliant with Section 81 of RP Act.
43.The Election petition is therefore liable to be rejected under
Order 7 Rule 11 of CPC and is accordingly rejected. Interim Application
stands allowed.
44.In view of the dismissal of Election Petition, Application bearing
AEP (Ld.) No.27861 of 2024 seeking amendment of Petition stands
dismissed. This Court is informed that after the matter was reserved
for orders on the present Application, an Interim Application has been
filed by the Petitioner. However, the same has not been circulated
before this Court. In view of the dismissal of Election Petition, the
Interim Application bearing AEP (Ld.) No.31211 of 2024 also stands
dismissed.
[Sharmila U. Deshmukh, J.]
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