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IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
Vinit Kumar Mathur, J.
Jitendra Kumar Khatik - Appellants
Vs.
Kiran Maheshwari and Ors. - Respondent
S.B. Election Petition No. 5 of 2019
Decided On : 31-03-2021
Civil Procedural Code, 1908 - Section 151 - Order 7 Rule 11 - Representation of the People Act, 1951 - Section 80(A), 86(1), 101, 117, 125(A) - Security for costs - Trial of election petitions - Grounds for which a candidate other than returned candidate may be declared to have been elected - Whether election petitioner can be declared as elected on post of Member of Legislative Assembly for Rajsamand Constituency on account of death of the respondent No. 1 or not – Held, positions held by election-petitioner in different organizations including political party will not suo motu make him eligible to be elected as Member of Legislative Assembly for Rajsamand Constituency on account of death of the respondent No. 1 - The guess work is not possible as there is no foundation to presume the fact that the persons belonging to the community of the election-petitioner would cast their votes in his favour - Although, the election-petitioner while submitting the written submissions stated that he is holding the number of positions in the organizations and political parties but the same will not entitle him for getting elected without contesting the elections and getting the requisite votes for being declared as winning candidate - It is actually the will of the people which is expressed by them by casting their votes in favour of the candidate and therefore, even if a person is holding the number of positions and is a social worker, it cannot be presumed that the people will elect him as a Member of Legislative Assembly - Petition dismissed.
JUDGMENT :
Vinit Kumar Mathur, J.
1. With the consent of the parties, the present election petition is being heard finally and decided.
2. The present election petition has been preferred under Section 80(A) and 125(A) of the Representation of the People Act, 1951 by the election-petitioner, whereby a challenge was made to the election of respondent No. 1 - Smt. Kiran Maheshwari as Member of Legislative Assembly (M.L.A.) of Rajsamand Constituency (175) in pursuance to the Legislative Assembly Election - 2018.
3. The result of the election of Legislative Assembly Elections - 2018 was declared on 13.12.2018, whereby the respondent No. 1 - Smt. Kiran Maheshwari was declared elected as Member of Legislative Assembly (M.L.A.) of Rajsamand Constituency (175). Aggrieved of the same, the present election petition was filed by the election-petitioner before this Court on 24.01.2019. At the time of presentation of the election petition, certain defects were pointed out by the Office, which were removed by the election petitioner subsequently. The notices in the election petition were issued by this Court on 28.08.2019. During the pendency of the present election petition, following Interlocutory Applications (IAs) were filed by the parties as under:-
| I.A. filed by petitioner | ||
| IA No | Date | Details of application |
|
| 05th September 2020 | Letter Application – Calling in question election of Smt Kiran Maheshwari. For dismissal of application U/O 7 Rule 11 CPC and closure of reply of Respondent No. 1 as the time provided for the same was till 27/09/2019 but more than 90 days have passed. |
| 01/2021 | 5th January, 2021 | Application under Sec 151 CPC for disposal of the election petition and declaring the petitioner as elected for next five years on account of death of respondent No.1 |
|
| 8th March, 2021 | Application under Sec. 151 CPC for disposal of the election petition and declaring the petitioner/ respondent No 2 (Shri Narayan Singh Bhati) as elected member of legislative assembly of Rajsamand |
| IA filed by the respondents | ||
| 1/2019 | 26th Feb, 2019 | Returning officer cum SDO, Rajsamand filed an application under O 1 R 10(2) CPC for impleadment as party and releasing the EVMs and VVPATS machines. (Decided vide Order dated 22/04/2019 vide which the application to the extent of impleadment of the applicant as party respondent was dismissed as not pressed while directing to release the VVPAT) |
| 1/2020 | 28th Jan, 2020 | By respondent No 1 – Shri Kiran Maheshwari Application under O 7 R 11 r/w Section 33 of the Representation of the People Act, 1951 for dismissal of the election petition. |
| 2/2020 | 1st October, 2020 | Application for deleting respondent Nos. 11, 12 and 13 from the array of respondents |
| 03/2020 | 16th December, 2020 | Application on behalf of respondent – election commission under sec 151 CPC for disposal of the election petition and bringing on record - 1. Death of Smt. Kiran Maheshwari on 30th November, 2020 2. Notification dt. 02.12.2020 declaring Legislative Seat Rajsamand (175) as vacant |
| 02/2021 | 12th Feb, 2021 | Application under Sec 151 CPC for dismissal of the election petition on account of noncompliance of Section 117 of the Act of 1951 |
4. During the pendency of the present election petition, respondent No. 1 - Smt. Kiran Maheshwari passed away on 30.11.2020. Accordingly, a Notification dated 02.12.2020 declaring the seat of Rajsamand Constituency as vacant was published, which was placed on record by the respondent - State.
5. The petitioner, who was present in person in the Court, reiterated the contentions as raised in the election petition and vehemently submitted that the respondent No. 1 concealed the correct information about pendency of criminal cases against her and therefore, her nomination
The election petition must comply with the provisions of the Representation of the People Act, 1951, and the non-deposit of the security amount for the petition is a fatal defect.
Election petitions deficient in material facts, containing false averments, or failing to demonstrate material effect on election result or corrupt practice with required affidavit are summarily dism....
Election disputes must comply strictly with statutory provisions regarding party joinder, as outlined in the Representation of the People Act, 1951.
An election petition may be dismissed if the petitioner fails to establish their locus standi as either a candidate or elector, leading to a lack of substantive legal foundation for the claim.
An election petition must contain concise material facts and particulars as per the Representation of Peoples Act, 1951; failure to do so results in dismissal.
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