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2024 Supreme(Online)(Bom) 6875
HIGH COURT OF BOMBAY
SANDEEP V. MARNE, J
RAVINDRA DATTARAM WAIKAR – Appellant
Versus
AMOL GAJANAN KIRTIKAR AND 19 ORS. – Respondent
AEPL/29930/2024
Mr. Pradeep M. Patil, with Mr. Parvinchand B. Gole and Mr. Nimish S. Parakh i/b Mr. Amit A. Karande, for the Petitioners. 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, for Respondent No.1. Adv. Deepti Thorat i/b Ashwini Jadhav, for Respondent No.5. Mr. Jayant Gohil with Mr. Sunil Humbre, for Respondent No.7.
An Election Petition must contain a concise statement of material facts; failure to do so results in dismissal under Order VII Rule 11 of the Code.
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 due to alleged irregularities in counting process - Petitioner contended that election was materially affected by improper rejection of votes and non-compliance with statutory provisions - Court highlighted that Election Petition lacked concise statement of material facts and did not disclose cause of action. (Paras 1-54)
(B) Election Petition - Requirements - It must contain concise statement of material facts demonstrating grounds under Section 100 - Mere allegations without specific details or proof of material impact on election result are insufficient. (Paras 1, 52)
Facts of the case:
Petitioner contested election results for 27 Mumbai North-West Constituency, alleging improper counting and handling of votes, including non-supply of forms and unauthorized use of mobile phones during counting. Petitioner claimed to have secured more votes than Respondent but was declared defeated by a narrow margin.
Findings of Court:
The Election Petition was rejected for failing to meet statutory pleading requirements and lacking material facts to support the grounds for declaring the election void.
Issues: Whether the Election Petition disclosed a cause of action for the alleged irregularities affecting the election result.
Ratio Decidendi: The court emphasized strict compliance with the provisions of the RP Act and ruled that the absence of necessary pleadings led to the dismissal of the Petition.
Result: Election Petition rejected under Order VII Rule 11 of the Code.
J U D G M E N T:
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 18 th 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 18 th 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 18 th 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 application requesting re-count of votes and turning down the written request subsequently made.
(iv) Usage of Mobile Phones unauthorizedly inside the counting area.
(v) Impersonation of electors resulting in 333 votes being cast as ‘Tendered Votes’ which went uncounted.
(vi) Discrepancy in the number of ‘Tendered Votes’ recorded in ‘Form 17-C (Part-I) – Account of Votes Recorded’ by the Presiding Officer
