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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Ravindra Dattaram Waikar - Applicant
In the matter of
Amol Gajanan Kirtikar and Others - Petitioners
Versus
Ravindra Dattaram Waikar and Others - Respondents
APPLICATION (LODGING) NO.29930 OF 2024 WITH APPLICATION (LODGING) NO.29880 OF 2024 WITH ELECTION PETITION NO.6 OF 2024
Decided On : 19-12-2024
For the Petitioners: Mr. Pradeep M. Patil, with Mr. Parvinchand B. Gole and Mr. Nimish S. Parakh i/b Mr. Amit A. Karande.
For the Respondents:Mr. Anil Y. Sakhare, Senior Advocate with Mr. Utsav Trivedi, Mr.Shyamsunder Jadhav, Ms. Kavita Dhanuka, Mr. Vishal Acharya, Mr. Rohan Mirpurey, Ms. Savita Suryavanshi and Bhavya Shah i/b Mr. Chirag Shah, Adv. Deepti Thorat i/b Ashwini Jadhav, Mr. Jayant Gohil with Mr. Sunil Humbre, Mr. Surindar Mohan Arora, (present-in-person), Mr. Rohan Satone, (present-in-person), Mr. Bharat Khimji Shah, (present-in-person), Mr. Santosh Manik Rayban, (present-in-person).
An election petition must contain a concise statement of material facts to demonstrate grounds under the Representation of People Act; failure to do so results in dismissal under Order VII Rule 11 of the Code of Civil Procedure.
Headnote:(A) Representation of People Act, 1951 - Sections 83(1)(a), 100(1)(d)(iii) and (iv) - Election Petition challenging election of Respondent No.1 as void - Petitioner alleged improper reception of votes, non-supply of Form 17-C, and improper rejection of recount request - Court found Election Petition lacked concise statement of material facts and did not disclose cause of action - Petition dismissed under Order VII Rule 11 of CPC. (Paras 1, 2, 51, 54)
(B) Election Law - Requirement of pleadings - Election Petition must contain concise statement of material facts to demonstrate grounds under Section 100 - Failure to do so results in dismissal of the petition. (Paras 26, 51)
(C) Election Petition - Nature of proceedings - Statutory remedy requiring strict compliance with provisions of RP Act - Not an action at common law or in equity. (Paras 26, 52)
JUDGMENT :
(Sandeep V. Marne, J.)
1) Respondent No.1 in the Election Petition, who is the Returned Candidate, has filed Application (L) No. 29930 of 2024 seeking rejection of the Election Petition under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 ( Code ). Respondent No.1 has also filed Application (L) No.29880 of 2024 for striking of various paragraphs pleaded by the Petitioner in the Election Petition under Order VI Rule 16 of the Code.
2) The Election Petition seeks declaration of election of Respondent No.1 to the 18th Lok Sabha from 27 Mumbai North-West Constituency as void under provisions of Section 100(1)(d)(iii) and (iv) of Representation of People Act, 1951 ( RP Act). The Election Petition further seeks a declaration that the Petitioner is duly elected to the 18th Lok Sabha from 27 Mumbai North-West Constituency under Section 84 read with Section 101(a) of the RP Act.
3) Brief facts leading to filing of the Election Petition are that the Election Commission announced the schedule for 2024 General Elections to the 18th Lok Sabha on 16 March 2024, which were to be conducted in seven phases. So far as election for 27-Mumbai North-West Constituency is concerned, the same was to be held in the fifth phase. The Election Schedule for fifth phase for 27-Mumbai North-West Lok Sabha Constituency was announced by the Election Commission as follows:
| SR | PARTICULARS | DATE |
| 1. | Announcement & issue of Press Note | 16.03.2024 |
| 2. | Issue of Notification | 26.04.2024 |
| 3. | Last date for filing of Nominations | 03.05.2024 |
| 4. | Scrutiny of Nominations | 04.05.2024 |
| 5. | Last date for withdrawal of Candidature | 06.05.2024 |
| 6. | Date of Poll | 20.05.2024 |
| 7. | Date of counting of votes | 04.06.2024 |
| 8. | Date before which election shall be completed | 06.06.2024 |
| 5. | Last date for withdrawal of Candidature | 06.05.2024 |
| 6. | Date of Poll | 20.05.2024 |
| 7. | Date of counting of votes | 04.06.2024 |
| 8. | Date before which election shall be completed | 06.06.2024 |
4) Total of 21 candidates were in the fray for election from the Constituency, which included interalia the Petitioner from Shiv Sena (Uddhav Balasaheb Thackeray) Party and Respondent No.1 from Shiv Sena Party. The voting in pursuance to the election to the said Constituency was held on 20 May 2024. The counting of votes was conducted on 4 June 2024 and the final result was declared in Form-20, in which Petitioner secured 4,52,596 votes whereas Respondent No.1 secured 4,52,644 votes. Petitioner has given the details of votes polled by him and Respondent No.1 through Electronic Voting Machine (EVM) and Postal Votes in paragraph 7 of the Election Petition as under:
| SR | CANDIDATE | PARTY | EVM VOTES | POSTAL VOTES | TOTAL VOTES |
| 1. | Ravindra Dattaram Waikar | Shiv Sena | 451094 | 1550 | 452644 |
| 2. | Amol Gajanan Kirtikar | Shiv Sena (Uddhav Balasaheb Thackeray) | 451095 | 1501 | 452596 |
5) This is how Respondent No.1 was declared as a Returned Candidate by a narrow margin of 48 votes over the Petitioner. According to the Petitioner, he had secured one vote more than the Returned Candidate after counting of EVM votes. However, Returned Candidate secured 49 votes more in the postal ballot and accordingly he was declared elected by 48 votes.
6) Petitioner has accordingly filed the Election Petition challenging the election of Respondent No.1 on following broad grounds:
(i) Counting agents appointed by the Election Petitioner not permitted to sit at the ARO/RO Table, despite being a statutory requirement.
(ii) Form 17-C (Part II) not given in any of the 563 polling booths of 2 Assembly Segments (158-Jogeshwari and 164-Versova) and 276 polling booths of another Assembly Segment (163- Goregaon).
(iii) No reasonable opportunity given to make applicati
