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2024 Supreme(Online)(Bom) 6391
HIGH COURT OF BOMBAY
Sharmila U. Deshmukh, J
ANIL YASHWANT DESAI – Appellant
Versus
Mahendra Tulshiram Bhingardive – Respondent
AEPL/29382/2024
Mr. Devdatt Kamat, Senior Advocate along with Mr. Ankit Lohia, Mr. Rubin Vakil, Mr. Rishit Vimaldalal., Mr. Harsh Pandey, Mr. Manish Doshi, Heena T, Ms. Isha Thakur, Gunjan Doiphode i/b Vimaldalal & Co., for the Applicant. Ms. Iraa Dube Patil i/b Jay & Co., for the Respondent No. 3. Mr. Abhijit P. Kulkarni, Mr. Gaurav Shahane, Mr. Shreyas Zarkar for the Respondent No. 15.
An election petition must disclose a cause of action by pleading material facts demonstrating how alleged defects materially affected the election result; failure to do so results in dismissal.
Headnote:(A) The Code of Civil Procedure, 1908 - Order VII Rule 11(a) - Representation of the People Act, 1951 - Sections 81, 82, 83, 86, and 100 - Election Petition seeking invalidation of nomination papers for non-compliance with statutory requirements - The court found that the petition lacked material facts to demonstrate a cause of action and did not comply with the necessary statutory provisions. (Paras 1, 6, 42)
(B) Election Petition - Requirements - The petition must contain a concise statement of material facts and demonstrate how the alleged defects materially affected the election result - Failure to do so results in dismissal. (Paras 18, 42)
Facts of the case:
The Election Petition challenged the validity of nomination papers of the returned candidate and others, alleging defects in the affidavits submitted. The petitioner sought a declaration of their election based on these claims. (Paras 2, 3)
Findings of Court:
The court found that the petition did not disclose a cause of action as it failed to plead material facts regarding the alleged defects and their impact on the election outcome. (Paras 42, 43)
Issues: The main issues were whether the petition disclosed a cause of action and whether it complied with the statutory requirements of the RP Act. (Paras 18, 42)
Ratio Decidendi: The court ruled that for an election petition to succeed, it must clearly articulate how the alleged improper acceptance of nominations materially affected the election results, which was absent in this case. (Paras 20, 42)
Result: The Election Petition was dismissed for non-compliance with statutory provisions.
ORDER :
1. The present application has been preferred by the returned candidate, who is arraigned as Respondent No.1 in the Election Petition, under Order VII Rule 11(a) of The Code of Civil Procedure, 1908 [for short, “CPC”] read with Sections 81 and 82 of the Representation of the People Act, 1951 [for short “RP Act”] seeking dismissal of Election Petition for non disclosure of cause of action.
RELEVANT PLEADINGS IN ELECTION PETITION:
2. The present Election Petition seeks a declaration that the nomination papers of the returned candidate as well as other candidates who had contested the election be declared as invalid, null and void as being defective, incomplete and invalid nomination papers and for an order declaring the Petitioner as elected candidate in the General Elections-2024 from the South Central Mumbai Parliamentary Constituency as per Sections 84 and 101 of the RP Act.
3. The allegations set out in paragraph 11 of the Election Petition in respect of the nomination papers of Respondent No.1-returned candidate are that oral objections were raised by the Petitioner during the scrutiny of the nomination papers- AfÏdavit (Form 26) as there were few blank columns, signature was missing on the reverse of stamp paper and wrong information and incomplete information has been given in the AfÏdavit (Form 26). It is further alleged that the Returning OfÏcer instructed the Petitioner to give his objections in writing and without giving any opportunity to furnish his written objections accepted the incomplete nomination papers of the returned candidate. It is further alleged that though the Respondent No.1 had filed 3 nomination papers only one single AfÏdavit (Form 26) was uploaded on the Election Commission of India’s website by the Returning OfÏcer.
4. Allegations of similar nature as regards blank columns, uploading of the AfÏdavit Form 26 multiple times on the website, no signature on reverse side of the stamp paper etc were made in respect of the nomination papers filed by the other 13 contesting candidates alleging that those were incomplete and defective and wrongfully and improperly accepted by the Returning OfÏcer.
5. The objections as regards the present Applicant is given in tabular form in paragraph 16 of the Election Petition is reproduced below :
| Candidate / the Respondent No. 1: Shri. Anil Yashwant Desai. Party : Shiv Sena (Uddhav Balasaheb Thakkre) |
| Point No’s. Objections. |
| Part A | AfÏdavit Form 26 (stamp paper back side not signed by the candidate as per the guideline given) every page need to be signed. |
| Point No.4 | Table 4th Column wordings (as on 31st March) is missing. |
| Point No.7B(iv) | Residential Building heading i. Dependent No.1 (daughter Ms. Rima Anil Desai) information wrongly mentioned as Not Applicable even though she had 20% share in the Residential Flat No.101, Peacock Palace. ii. Approximate Current Market Value heading – 4 Column’s kept Blank (i.e., HUF, Dep 1, Dep2 and Dep3.) |
| Part B | |
| Serious Objection | AfÏdavit Form 26, stamp paper bearing No.02B 647896, stamp vendor serial No. 325 (written on back of stamp paper) issued on 24.04.2024 is uploaded 3 times on Election Commission of India website, showing Uploading time on Election Commission site. 1st AfÏdavit uploading time – 17:09:38; same stamp paper No. 02AB647896. 2nd AfÏdavit uploading time – 17:19:08; same stamp paper No. 02AB647896. 3rd AfÏdavit uploading time – 17:21:35; same stamp paper No. 02AB647896. |
APPLICATION UNDER ORDER VII RULE 11:
6. The application seeks dismissal of the Election Petition under Order VII Rule 11(a) of CPC for non-disclosure of cause of action read with Section 86 of RP Act for non-compliance with Sections 81 and 82 of RP Act majorly on the following grounds:
(a) Exhibit “G” to the Petition which is AfÏdavit (Form 26) of the Applicant has been verified by Petitioner as true copy, however there are interpolations on the document made by the Petitioner himself;
(b) For rejection of nomination papers under Section 36(4) of the RP Act, the de
