Election petition invalid if security for costs not deposited by petitioner at presentation; defect incurable despite later deposit. Non-disclosure of minor cases not corrupt practice without pleadings of knowledge, materiality, and effect on election result.

JUDGMENT :

ARIF S. DOCTOR, J.

1. The present Interim Application has been filed under the provisions of Section 86 of the Representation of the People Act, 1951 (“R.P. Act") read with Order VII Rule 11 of the Code of Civil Procedure, 1908 ("CPC"), seeking dismissal of the captioned Election Petition.

2. Before adverting to the rival contentions, it is useful for context to set out the following facts, which are not in dispute, viz.,

2.1. The Applicant and the Respondent No. 1, i.e., the Petitioner in the captioned Election Petition, were both candidates from Constituency No. 181, i.e., the Mahim Constituency, in the 15th Maharashtra Legislative Assembly elections, which were held on 20th November 2024 (“the Election"). For the sake of convenience, Respondent No. 1 to this Application shall be referred to as the Petitioner in this Order.

2.2. The results of the Election were declared on 23rd November 2024, and the Applicant was declared the returned candidate with 50,213 votes, whereas the Petitioner polled 48,897 votes, which was the second highest number of votes polled.

2.3 It is the Petitioner's case that the Applicant had, in the Affidavit (Form 26) which is attached to the Nomination Paper, failed to disclose the following, viz.,

i. The chargesheet filed in Case No. 734/PW/2023 in FIR No. 569/2022 registered with Dadar Police Station in which the maximum punishment of imprisonment may extend to three years or a fine or both.

ii. The pendency of Case No. 201/PS/2024 in FIR No. 52/2023 registered for offences punishable u/s 37(3) and 135 of Maharashtra Police Act, 1951, for organising a political protest. The Punishment for the said offence u/s. 37(3) r/w s. 135(3) of Maharashtra Police Act, 1951, is a fine which may extend to two thousand and five hundred rupees.

iii. Case No. 131/SW/2016 was filed before the Additional Chief Judicial Magistrate, 5th Court, Dadar, Mumbai, u/s. 15 and 19 of the Environment Protection Act, 1986, and Noise Pollution Rules, 2000, for noise pollution, the punishment for which is five years or a fine which may extend to one lakh rupees or both.

iv. Case No. 1728/Misc./2022 was filed before the Additional. Chief Judicial Magistrate, 5th Court, Dadar, Mumbai, u/s. 15 of the Environment Protection Act, 1986, and Noise Pollution Rules, 2000, for noise pollution, the punishment for which is five years or a fine which may extend to one lakh rupees or both.

2.4. The Petitioner thus filed the captioned Election Petition, inter alia, alleging that the Applicant had, by failing to disclose (i) to (iv) above, committed a corrupt practice within the meaning of Section 123(2) of the R.P. Act. Resultantly, the election was liable to be declared void under Section 100(1)(d)(ii) of the R.P. Act, and the election result was liable to be set aside in terms of Section 101(b) of the R.P. Act.

2.5. Conversely, it is the Applicant’s case that the Petition is liable to be dismissed under the provisions of Section 86(1) of the R.P. Act read with the provisions of Order VII Rule 11 of the CPC. The grounds for dismissal of the Petition under the provisions of Section 86(1) of the R.P. Act he