IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL APPLICATION (O) NO. 211/2022 IN CIVIL APPLICATION (O) NO. 754/2020 (D)

IN ELECTION PETITION NO. 10/2019 (NANA FALGUNRAO PATOLE & ANOTHER VERSUS NITIN JAIRAM GADKARI & OTHERS)

Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions Court's or Judge's order and Registrar's orders.

Shri Ravi Jadhav with Shri S.I. Khan, counsel for the applicants/petitioners.

Shri S.V. Manohar, Senior Advocate with Shri D.V. Chauhan, counsel for the non-applicant no.1/respondent no.1.

CORAM : A. S. CHANDURKAR J.

DATE ON WHICH ARGUMENTS WERE HEARD : 16 ^TH SEPTEMBER , 2022 . DATE ON WHICH ORDER IS PRONOUNCED : 30 ^TH SEPTEMBER , 2022 .

By this application the applicants seek review of the order dated

17.12.2021 passed in Civil Application (O) No. 754 of 2020. By that order the application preferred by the non-applicant no.1 under provisions of Order VI Rule 16 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) was partly allowed and paragraphs 7 (i), (iv), (iv-a), (v), (vi), (vii), (viii), (ix), (ix-a), (ix- b), (x), (xi) and (xii) were directed to be struck off as they did not indicate any material fact to seek the reliefs sought in the election petition. Similarly, the pleadings in paragraphs 7(iv-A), (ix) and (ix-a) alleging commission of corrupt practice by the returned candidate were also directed to be deleted since the source of information of the election petitioners on the basis of which such pleadings had been made had not been disclosed therein.

2. The learned counsel for the applicants submitted that this Court committed an error in appreciating various annexures filed alongwith the election petition which indicated the source of information on the basis of which averments were made in the election petition. Since there was prima-facie material available on record in the form of such annexures they supported the relevant pleadings. By failing to take into consideration the effect of those annexures the aforesaid paragraphs were directed to be deleted on the premise that the source of information was not disclosed. It had resulted in an error apparent on the face of record and hence review jurisdiction had been invoked. In support of the aforesaid submissions, reliance was placed on the decisions in Ajay Arjun Singh Versus Sharadendu Tiwari & Others [AIR 2016 SC 4087], Harkirat Singh Versus Amrinder Singh [(2005) 13 SCC 511] as well as copy of Form 26 under Rule 4A of the Representation of People Rules, 1951.

3. The learned Senior Advocate for the returned candidate at the outset raised an objection to the tenability of the review application on the ground that under the provisions of the Representation of People Act, 1951 (for short, ‘the Act of 1951’) there was no power conferred on the Court trying the election petition to review its own order. Referring to the provisions of Section 87 of the Act of 1951 it was submitted that under sub-Section (1) thereof every election petition was required to be tried by the High Court “as nearly as may be” in accordance with the procedure applicable under the Code to the trial of suits. In view of aforesaid provision, it was only the procedure prescribed under the Code that was applicable in a trial of an election petition. The right to invoke the review jurisdiction was not inherent and the same required conferment of power in that regard. In absence of any substantive provision in the Act of 1951 conferring the power of review on the Court while trying an election petition, a review application seeking review of an order passed in such proceedings was not maintainable. The only exception to the aforesaid principle was when the jurisdiction under Article 226 of the Constitution of India was exercised. Since the present proceedings were purely governed by the provisions of the Act of 1951 and there being absence of any power of review the application itself was not maintainable. In that regard, the learne