1. This Election Petition is filed under section 100(1)(d)(i) and section 100(1)(d)(iv) of the Representation of the People Act, 1950 praying that the election of Respondent No.1 from 26, Mumbai North Parliamentary Constituency is to be declared as null and void and be set aside and also declaring that the petitioner has secured majority of the valid votes and he is to be declared as elected in respect of 26, Mumbai-North Parliamentary Constituency in the 16th Lok Sabha elections held on 24.11.2014. The challenge given in brief is on the point of non-disclosure of the information regarding assets of Respondent No.1 and his spouse in the nomination form and in the affidavits resulting into wrongful acceptance of the nomination form and the affidavit of the elected candidate.

2. At the outset, Mr. Bhadbhade, the learned Counsel for the Petitioner has submitted that he is not pressing prayer clause (b) of para 66, but pressing only prayer clause 66(a). The said prayer clauses read as under:

“66. ..

(a) That this Honourable Court be pleased to declare the election of respondent no.1 from the 26 – Mumbai North Parliamentary constituency as null and void and the same be set aside.

(b) This Honourable Court be pleased to declare that the petitioner has secured majority of valid votes and be declared as elected in respect of 26 – Mumbai North Parliamentary constituency in the 16th Lok Sabha elections, held on 24 April 2014 as the Petitioner has secured second highest votes.”

The learned Counsel has pointed out that he does not want declaration that the petitioner is to be declared as elected but he limits his prayer to the declaration that the election of Respondent No.1 from 26, Mumbai-North Parliamentary Constituency, is null and void and the same to be set aside.

3. In brief, the case of the petitioner is that the respondent No.1 is the owner of the plot bearing CTS Nos.36, 36(1) to 36(12) at Borivali when he filled up the nomination form. His company, namely, Balaji Construction assigned developmental rights to his wife's company, namely, Jyoti Construction, who constructed a building on the said plot. The respondent did not mention about it and about the asses of the construction company, namely, Jyoti Construction, owned by his wife and son in the nomination form. The Election Petition is filed on 2 counts – firstly, the election officer has failed to decide the objections raised by PW2 Subodh Ranjan and secondly, on improper acceptance of nomination form of Respondent No.1 by the Returning Officer. Both the objections are based on non-disclosure of the assets of Respondent No.1 and his wife in the affidavit dated 31.3.2014 (exhibit 12) which was filed along with the nomination form dated 1.4.2014 (exh. 11).

4. The nomination form was filled up along with affidavit by Respondent No.1 on 1.4.2014. Thereafter, immediately on 7.4.2014, PW2 Subodh Ranjan raised objection about the nondisclosure of the assets by Respondent No.1. The said objection ought to have been decided before the acceptance of the nomination form by the Returning Officer. However, it was not done and, therefore, the election results are materially affected. Thus, the case was put up that if the nomination form would have been rejected on the ground of non-disclosure of the assets, the respondent would not have been elected, hence, the election is materially affected.

ARGUMENTS - SUBMISSIONS OF THE PETITIONER

5. The learned Counsel Mr. Bhadbhade by referring to the nomination form, has submitted that as per the requirement, no column in the nomination form is to be left blank, but it is to be filled in even if it is not applicable. He has submitted that if the petitioner is successful in proving the two facts that there is a property other than the property disclosed in the name of Respondent No.1 or his wife and secondly, the said property is not disclosed,