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2024 Supreme(Online)(Bom) 659
HIGH COURT OF BOMBAY
PRITHVIRAJ K. CHAVAN, J
SHA BRA DR. JAISIDDESHWAR SHIVACHARYA MAHASWAMIJI NURANDSWAMI GURUBASAYYA HIREMATH – Appellant
Versus
KIRTIKUMAR DATTATRAY SHIVSARAN – Respondent
AEPL/31043/2023
An election petition must disclose material facts and particulars of any alleged corrupt practices; failure to do so warrants dismissal under CPC and the Representation of the People Act.
Headnote:(A) Code of Civil Procedure, 1908 - Order VII, Rule 11(a) and (d) - Representation of the People Act, 1951 - Sections 81(3), 82, 83, 86, 100, 123 - Election Petition - Rejection of Election Petition on grounds of non-disclosure of cause of action and non-compliance with statutory requirements - Petition lacked specific allegations of corrupt practices, failed to join necessary parties, and did not substantiate claims regarding the Electronic Voting Machines (EVMs) - Court emphasized the necessity of pleading material facts and particulars as per Section 83 of the Act. (Paras 1-64)
(B) Election Petition - Requirements - An election petition must contain a concise statement of material facts and particulars of any corrupt practice alleged - Mere allegations without substantiation or material facts lead to dismissal of the petition. (Paras 23-27)
(C) Election Petition - Nature of - The petition was characterized as akin to Public Interest Litigation, challenging the use of EVMs rather than specific electoral misconduct. (Paras 54-60)
(D) Final Decision: Election Petition rejected, security deposit forfeited. (Para 63)
ORDER:
1. This is an application moved by the applicant – returned candidate - Sha Bra Dr. Jaisiddeshwar Shivacharya Mahaswamiji @ Nurandswami Gurubasayya Hiremath under Order – VII, Rule - 11 (a) and (d) of the Code of Civil Procedure, 1908 (for short “C.P.C”) for rejection of the Election Petition on the ground that the petition neither discloses any cause of action nor is in compliance with the provisions of Section 81 (3) of The Representation of the People Act, 1951 (for short “Act”).
2. Applicant is the original respondent in the Election Petition whose election to 42nd Solapur (SC) Lok Sabha General Election Constituency, 2019 has been challenged by the respondent (original petitioner) by stating that the said election is void.
3. The applicant, upon receiving summons in the Election Petition filed a written statement accompanied with certain documents.
4. It is contended that the entire Election Petition hinges on a single allegation, namely the vulnerability of Electronic Voting Machines (EVMs) employed in general elections. The respondent- original petitioner contended that discrepancy of 132 votes existed between the votes cast and the votes counted.
5. The applicant contends that the respondent’s Election Petition lacks specific allegations and primarily serves as a platform to address the issue of EMV usage in the electoral process. According to the applicant, this matter is akin to a Public Interest Litigation.
6. It is the specific contention of the applicant that there is non compliance of Section 81 of the Act. Section 81, sub-section (3) mandates that every Election Petition shall be accompanied by as many copies thereof as there are respondents mentioned in the Election Petition and every such copy shall be attested by the petitioner with his own signature to be a true copy of the petition. The applicant, therefore, states that till this date, the respondent has failed to provide a copy of the original Election Petition and, instead, has served an amended version. Even the amended Election Petition lacks attestation by the respondent under his own signature to confirm it’s accuracy as a true copy of the original petition. Neither the respondent nor his legal Counsel have affixed their signatures to the Election Petition or it’s annexures as “True Copy”. Original copies of the Election Petition were never provided to the applicant. Copies of the amended Election Petition also lack original signature of the respondent anywhere on the Election Petition or it’s annexures. It is further contended that non compliance or failure to attest the copies under his original signature as “True Copy” is fatal in the maintainability of the Election Petition. Election Petition, on this ground, alone is liable to be rejected under Section 86 (1) of the said Act.
7. It is further contended that the Election Petition is liable to be dismissed on the ground of non joinder of necessary parties as contemplated under Section 82 of the Act since, admittedly, the respondent has not joined all the candidates who contested the said election of 42nd Solapur Lok Sabha General Constituency, 2019.
8. It is contended that cause title of the Election Petition admits that the respondent is an ordinary resident of New Budhwar Peth, Anand Chowk, District Solapur. However, the entire Petition is devoid of any pertinent information as to how the respondent has been aggrieved by the election of the applicant as a Member of Parliament from the 42nd Solapur Lok Sabha General Elections in 2019. Additionally, the Election Petition fails to provide any details as to whether the respondent has exercised his right to vote in Solapur during the said General Elections. The Election Petition is liable to be dismissed on this count also.
9. The applicant further contends that the Election Petition is also liable to be dismissed on the ground that there are no averments as to whether the respondent exercised his right to vote in Solapur during the said general elect
