Election Petition Dismissed for Non-Compliance with S.82 RP Act and Lack of Material Facts: Bombay High Court

Nagpur Election Petition Against Nitin Gadkari Dismissed by Bombay High Court

Nagpur, Maharashtra - The Bombay High Court, Nagpur Bench, has dismissed an election petition filed by Santosh s/o Tulshiram Chavhan challenging the election of Nitin Jairam Gadkari to the 10th Nagpur Lok Sabha in the 2024 general elections. The petition was rejected primarily on grounds of non-compliance with Section 82 of the Representation of the People Act, 1950 (RP Act), and the absence of “material facts” in the pleadings.

Case Overview

Petitioner Santosh Chavhan , an advocate, had filed an election petition alleging that Nitin Gadkari and the Bharatiya Janata Party (BJP) violated the Model Code of Conduct (MCC) during the election. Chavhan claimed that digital machines were used to circulate slips containing Gadkari 's photograph, name, and BJP symbol to mislead voters. He sought a declaration that he himself be declared the elected member and the cancellation of Gadkari 's election certificate.

Respondent No. 3, Nitin Gadkari , through Senior Counsel Shri S.V. Manohar, contested the petition, arguing for its rejection under Order VII Rule 11 and Order VI Rule 16 of the Code of Civil Procedure (CPC) read with Section 86 of the RP Act. Gadkari contended that the petition was flawed due to the non-joinder of all contesting candidates as respondents, as mandated by Section 82 of the RP Act when the petitioner seeks to be declared elected himself. He further argued the petition lacked “material facts” regarding the alleged MCC violations and their impact on the election result.

Arguments and Legal Principles

Respondent's Arguments: Gadkari ’s counsel emphasized the mandatory nature of Section 82 of the RP Act, stating that failure to include all contesting candidates when the petitioner seeks to be declared elected is a fatal defect leading to dismissal. Reliance was placed on precedents such as Jyoti Basu vs. Debi Ghosal and Mohan Raj vs. Surendra Kumar Taparia which established that the provisions of CPC, particularly Order VI Rule 17, cannot cure non-compliance with mandatory provisions of the RP Act like Section 82. The counsel argued that amending the petition to include missing parties after the limitation period is impermissible in election petitions.

Further, it was argued that the petition lacked “material facts” as required by Section 83(1)(a) of the RP Act and Order VI Rule 2 of CPC. The specifics of the alleged MCC violations – who distributed slips, where, when, and how the election was materially affected – were missing. Citing Sudarsha Avasthi vs. Shiv Pal Singh and Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar , the respondent argued that failing to plead material facts leads to the dismissal of the petition as it fails to disclose a cause of action.

Petitioner's Counter Arguments: The petitioner argued that “material facts” were sufficiently pleaded and sought permission to amend the petition to add new respondents, citing Section 86(4) of the RP Act, which allows candidates to be added within 14 days of trial commencement. However, the court rejected this, clarifying that Section 86(4) applies to candidates wishing to join as respondents to contest the petition, not to cure the petitioner's initial failure to implead necessary parties.

Court's Reasoning and Decision

Justice Urmila Joshi-Phalke , presiding over the bench, meticulously examined the provisions of the RP Act and relevant precedents. The court underscored the statutory nature of election law, emphasizing that the RP Act is a self-contained code.

The judgment highlighted the mandatory nature of Section 82 of the RP Act:

> “Here, in the present case, the petitioner has clearly sought declaration of his own election and, therefore, it was obligatory on his part to join all the contesting candidates as respondents to his petition. There is no serious dispute as far as the settled law in view of the provisions of Section 82 of the RP Act is concerned which is mandatory in nature.”

The court also concurred with the respondent’s argument regarding the absence of “material facts”:

> “Thus, ‘material facts’ as to corrupt practices by whom, at which place and how the election materially affected are basic requirements. … The entire pleadings nowhere disclose as to who has procured the said machines, who were using the said machines and whether the said machines were used with the consent of the returned candidate or not and how it is used to influence the voters which requires to be pleaded to make out a cause or corrupt practices.”

Consequently, the court allowed Respondent No. 3 Nitin Gadkari ’s application under Order VII Rule 11 CPC and Section 86 RP Act, rejecting the election petition. The petition was dismissed, and costs were awarded to the returned candidate, Nitin Gadkari .

Implications

The Bombay High Court’s decision reaffirms the strict adherence to the procedural and substantive requirements of the RP Act in election petitions. It underscores the mandatory nature of impleading necessary parties under Section 82 and the crucial requirement of pleading “material facts” to establish a cause of action in election disputes. The judgment emphasizes that procedural lapses and vague pleadings can lead to the summary dismissal of election petitions, reinforcing the statutory framework governing electoral challenges in India.