Bombay High Court
Smt. Shobha Dinesh Bacchav vs Dr. Shri Subhash Ramrao Bhamre And … on 13 June, 2025
2025:BHC-AUG:14928
1 Appln.EP35.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION IN ELECTION PETITION NO.35 OF 2024
. Smt. Shobha Dinesh Bacchav
Age: 64 years, Occu.: Medical Practitioner,
R/o. Dhanvantri Hospital, Pet Road,
Panchavati, Nashik, Dist. Nashik .. Applicant
(Ori. Respondent No.3)
VERSUS
1. Dr. Shri Subhash Ramrao Bhamre,
Age: 71 years, Occu.: Medical Practitioner,
R/o. Plot No.16, Badgujar, Parola Road,
Dist. Dhule (Ori. Petitioner)
2. The Election Commission of India,
Through Chief Election Commissioner,
Nirvachan Sadan, Ashoka Road,
New Delhi
3. The Returning Officer,
Dhule Parliamentary Constituency 02
@ The Collector,
Dhule, Dist. Dhule,
C/o. Collector Office, Dhule, Dist. Dhule
4. Shri Bharat Baburao Jadhav,
Age: 42 years, Occu.: Labour,
R/o. At Pimpri, Po. Vadjai,
Tq. & Dist. Dhule
5. Zahor Ahamad Mohamad Yusuf (Jam Jam)
Age: 54 years, occu.: Agri.,
R/o. 3047/A, Panch Kandil,
Agra Road, Dhule, Dist. Dhule
6. Shafeeque Ahemad Md. Rafeeque,
Age: 44 years, Occu.: Business,
R/o.: Survey No.43, Plot No.2,
Shahid Abdul Hamid Road, Ganesh Nagar,
Malegaon, Dist. Nashik
2 Appln.EP35.2024
7. Shri Namdeo Rohidas Yalave,
Age: 52 years, Occu.: Business,
R/o.: At Post Walkheda,
Tq. Shindkheda, Dist. Dhule
8. Shri Sachin Umaji Nikam,
Age: 35 Years, Occu.: Advocate,
R/o.: At Dabali, Post. Kashti,
Tq. Malegaon, Dist. Nashik
9. Shri Raj Chavan,
Age: 55 years, occu.: Agri.,
R/o.22, Jamanagiri Road,
Golibar Tekadi Area, Sushil Nagar,
Dhule, Tq. & Dist. Dhule
10. Mohammad Ismail Jumman,
Age: 64 years, Occu.: Labour,
R/o. House No.10, Lane No.5,
Survey No.209/1, Munshi Shaban Nagar,
Malegaon, Dist. Nashik
11. Shri Suresh Jagannath Brahmankar,
Age: 67 years, Occu.: Labour,
At Post Jaykheda, Tq. Baglaan,
Dist. Nashik
12. Shri Shivaji Nathu Patil,
Age: 43 years, Occu.: Labour,
R/o. Shivaji Chouk, Aarvi,
Dist. Dhule
13. Shaikh Mohammad Zaid Shamim Ahmed,
Age: 53 years, Occu.: Private Service,
R/o. 201, Aksa Tower, Samrath Colony,
Chalisgaon road, Near Apni Bakery, Dhule
14. Mohammad Aameen Mohammad Faruque,
Age: 45 years, Occu.: Business,
R/o. S. No.92, Plot No.4,
Jafar Nagar, Malegaon, Dist. Nashik
15. Muqeem Meena Nagri,
3 Appln.EP35.2024
Age: 43 years, Occu.: Business,
R/o. S.R. No.19, H. 51,
Mominpura, Islampur, Malegaon,
Dist. Nashik
16. Irfan Mo. Ishak (Nadir),
Age: 43 years, Occu.: Social Worker,
R/o. 37 A near Beef Market, Navapura,
Malegaon, Tq. Malegaon, Dist. Nashik
17. Shri Malay Prakash Patil,
Age: 35 years, Occu.: Business,
R/o. "Umed Nivas" Chinchavali Wadi,
Goregaon, Tq. Mangoon, Dist. Rajgad
18. Abdul Hafeez Abdul Haque,
Age: 39 years, Occu.: Labour,
R/o. House No.2536/13,
Maulana Azad Road, Maulavi Ganj,
Dhule, Dist. Dhule .. Respondents
...
Advocate for Applicant :
Mr. V. D. Salunke & Mr. A. V. Deshmukh
Advocate for Non-applicant No.1/ Election Petitioner:
Mr. Mukul Kulkarni & Mr. Umesh G. Mitkari
Advocate for Non-applicants No.2 & 3 :
Mr. Alok Sharma
Advocate for Respondent 10 in EP : Mr. Mohit S. Shah
...
WITH
...
ELECTION PETITION NO. 2 OF 2024
. Dr. Shri Subhash Ramrao Bhamre .. Petitioner
Versus
1. The Election Commission of India,
Through Chief Election Commissioner
2. The Returning Officer,
4 Appln.EP35.2024
Dhule Parliamentary Constituency (02),
@ The Collector, Dhule, Dist. Dhule
3. Smt. Shobha Dinesh Bacchav
4. Shri Bharat Baburao Jadhav
5. Zahor Ahamad Mohamad Yusuf (Jam Jam)
6. Shri Sanjay Rameshwar Sharma
7. Shafeeque Ahemad Md. Rafeeque
8. Shri Namdeo Rohidas Yelave
9. Shri Sachin Umaji Nikam
10. Shri Raj Chavan
11. Mohammad Ismail Jumman
12. Shri Suresh Jagannath Brahmankar
13. Shri Shivaji Nathu Patil
14. Shaikh Mohammad Zaid Shamim Ahmed
15. Mohammad Aameen Mohammad Faruque
16. Muqeem Meena Nagri
17. Irfan Mo. Ishak (Nadir)
18. Shri Malay Prakash Patil
19. Abdul Hafeez Abdul Haque .. Respondents
...
WITH
...
APPLICATION IN EP NO. 20 OF 2024 IN EP/2/2024
DR. SHRI SUBHASH RAMRAO BHAMRE
VERSUS
5 Appln.EP35.2024
THE ELECTION COMMISSION OF INDIA AND OTHERS
...
WITH
...
APPLICATION IN EP NO. 31 OF 2024 IN EP/2/2024
...
THE ELECTION COMMISSION OF INDIA AND ANOTHER
VERSUS
DR. SHRI SUBHASH RAMRAO BHAMRE AND OTHERS
...
CORAM : ARUN R. PEDNEKER, J.
DATE : 13.06.2025 Judgment:
1. Heard Mr. Mukul Kulkarni along with Mr. Umesh G.
Mitkari, learned counsel for the Election Petitioner, Mr. V. D.
Salunke along with Mr. A. V. Deshmukh, learned counsel for
Respondent No.3 in the Election Petition and Mr. Alok Sharma,
learned Standing Counsel for the Election Commission.
2. General Elections to the 18th Lok Sabha was
announced on 16.03.2024 and Election / Voting to the Dhule
Parliamentary Constituency was held on 20.05.2024 and
Respondent No.3 was declared elected on 04.06.2024. The
election petitioner was one of the candidates in the election
who had secured the second highest votes. The elected
candidates secured 5,83,866 votes while the election
6 Appln.EP35.2024
petitioner secured 5,80,035 votes. The difference in votes
between the two candidates is 3831 votes.
3. The Dhule Parliamentary Constituency consists
of 6 assembly constituencies, which are Dhule (Rural), Dhule
(City), Sindkheda, Malegaon (Central), Malegaon (Outer) and
Baglan.
In the Malegaon Central Constituency out of
02,05,588 votes polled, respondent no.3 had secured 1,98,869
votes, whereas the petitioner received only 4542 votes and
none of the other candidates could pass 100 vote mark.
The Election Petition primarily focuses on this
Assembly Constituency (Malegaon Central Constituency) and
has filed Election Petition primarily contending that names of
large number of dead persons are included in the electoral roll
of this assembly constituency and votes are cast in the name of
the dead persons and the same is received by Respondent No.3.
It is also contended that there are multiple votes cast in the
name of same persons in different booths in the said Assembly
Constituency as their names are reflected in the Electoral Roll
at multiple places of the same assembly constituency.
7 Appln.EP35.2024
THE GIST OF THE ELECTION PETITION:
4. In the Election Petition, the relevant pleadings are
as under:
“A. The petitioner states and submits that on
inquiries the Petitioner came to know from
Abhishek Rajgopal Rathi, Rajiya Akbar Shah,
Subhash Jagannath Pachpute, Rajendra Jagannath
Pachpute, Jayesh Dipak Sonagra, Umesh Ramesh
Borwal, Ramesh Tukaram Chaudhari and Shital
Ramchandra Pawar, who all are residents of
Malegaon and party workers associated with the
Petitioner during the election and have noted that
votes were polled in the name of persons who were
already dead and that these votes are polled in
favour of Respondent No.3.
B. The Petitioner states and submits that the
Petitioner applied to the Malegaon Municipal
Corporation and sought details of the register
maintained under the Registration of Births and
Deaths Act in Malegaon Central Assembly
Constituency. It is a matter of record that the said
constituency consists of three Prabhags i.e.
Prabhag No.2, 3 and 4 formed by the Municiple
Corporation. In response to the information sought
by the Petitioner, the Corporation has supplied the
data containing the register of death maintained in
respect of Prabhag No.2, 3 and 4 for the period of
01.01.2016 to 31.05.2024, except for the period of
2020 to 2021 for Prabhag No.4. As per the said
register 17,767 persons have died during last 8
years 5 months. It is pertinent to note that entire
data as solicited by Petitioner is not supplied to the
Petitioner therefore the number stated above is
minimum and bound to increase after the
Petitioner received the entire data.
8 Appln.EP35.2024
C. The Petitioner states and submits that when
the Petitioner counter checked the entries in the
said register supplied to Petitioner by Municipal
Corporation, with the final list of voters, it revealed
that as of now the final list of voters, it revealed
that as of now the final list of voters contains
names of 4,378 dead persons of Malegaon Central
Assembly Constituency despite the fact that their
deaths are duly recorded in the register of deaths.
D. The Petitioner states and submits that the
Petitioner submitted application under the Right to
Information Act on 07.06.2024 soliciting the
nomination papers, the CCTV footage and the
register of voters maintained under Rule 17-A on
every booth in Malegaon Central Assembly
Constituency and also the details of the calculation
of votes on all those booths.
E. The petitioner states and submits that
Respondent No.2 replied to the Petitioner on
12.06.2024 and supplied the information
mentioned in clause 1 to 7. Respondent No.2
however did not supply the register maintained
under Rule 17-A and the calculation of votes on
individual booths on the ground that as per the
Election Commission handbook the same cannot be
supplied.
F. The Petitioner states and submits that
Respondent No.2 once again took shelter of the
handbook of the Election Commission and refused
to supply the information vide communication
dated 29.06.2024.
G. The Petitioner states and submits that the
further scrutiny of the final voter list from
Malegaon Central Constituency revealed that the
9 Appln.EP35.2024
names of voters are appearing on multiple
occasions in the same voter list. The Petitioner
came to know on inquiries from Abhishek Rajgopal
Rathi, Rajiya Akbar Shah, Subhash Jagannath
Pachpute, Rajendra Jagannath Pachpute, Jayesh
Dipak Sonagra, Umesh Ramesh Borwal, Ramesh
Tukaram Chaudhari and Shital Ramchandra Pawar
that these persons have cast their votes at more
than one places using different serial number in
different wards in favour of Respondent No.3.
The Petitioner has prepared a computerized
chart of all those persons whose names are
appearing in the final list of voters at more than
one place. The Petitioner has furnished the serial
number, page number and ward number wherein
such names are repeated. This chart is appended to
the present Election Petition and the same may be
treated as part and parcel of the present Election
Petition. As per the chart prepared by the
Petitioner, the persons who have voted in multiple
occasions are 3329 in numbers.
H. The Petitioner states and submits that the
result of the election of Dhule Parliamentary
Constituency is materially affected since there is
discrepancy in the number of votes polled and the
number of votes counted and also due to the fact
that 4,378 votes polled in the name of dead
persons. In addition to this the multiple voting by
3329 persons names in the chart referred above
also has an effect of materially altering the results
of the election. As large number of votes have been
cast in the name of dead persons and that too in
favour of the present Respondent No.3, it has
affected sanctity and purity of election. The
number of votes polled illegally at Malegaon
Central Assembly constituency would
10 Appln.EP35.2024
unequivocally demonstrate that Respondent No.3
is the only beneficiary of all such votes.
I. The Petitioner states and submits that
Respondent No.3 is elected by margin of 3,831
votes. This margin includes 4,378 votes polled in
the name of dead persons in favour of Respondent
No.3. In addition to this there are 3329 entries of
persons enrolled in the final list of voters at
multiple places which have gone in favour of
Respondent No.3. These illegally tendered votes, if
are excluded from the votes received by
Respondent No.3 then the total votes secured by
her will be less than the total votes secured by the
Petitioner. In further addition to this the votes
unaccounted for are taken into consideration then
it is clear that the Petitioner is the recipient of
highest number of legitimate votes in the
Parliamentary constituency and hence is entitled
to be declared as a returned candidate. The
Respondent No.3 is the only beneficiary of all
illegally tendered votes and hence all the votes
should be excluded from the votes received by her.
J. The Petitioner states and submits that the
cause of action for filing the present Election
Petition arose on 04.06.2024 when the result of
Dhule Parliamentary Constituency (02) was
declared by present Respondent No.2. The cause of
action further arose when the copy of the death
register maintained by Malegaon Municipal
Corporation received by the Petitioner and then it
was noticed that the names of dead persons were
included in the final list of voters.”
Application for dismissal of Election Petition
Application in Election Petition No.35 of 2024[Exhibit-16]
11 Appln.EP35.2024
5. On notice being issued, Respondent No.3 appeared
and filed an application for rejection of the Election Petition
under Order 7 Rule 11 of Code of Civil Procedure read with
Sections 81, 82 and 86 of the Representation of People Act,
1951.
6. The Respondent No.3 has sought dismissal of the
Election Petition on the following grounds:
A. That the petitioner has alleged corrupt
practice in the original Election Petition. However,
along with the original Election Petition, the
petitioner has not filed an affidavit in form no. 25,
which is a mandatory requirement under Section
83(1) of the Representation of People Act, 1951
(for brevity referred to as the “said Act”.
Therefore, for the above referred non-compliance of
a mandatory requirement, the original Election
Petition is liable to be dismissed at it’s threshold.
B. The original election petition has been filed
based on following baseless and bald allegations;
[I] Respondent No.3 in her affidavit filed along
with the nomination form has allegedly not
disclosed registration of Crime No.0283 of 2019
at the Niphad Police Station under Sections 409
and 406 of the Penal Code.
12 Appln.EP35.2024
[II] In Malegaon Central Assemble
constituency, some ladies in Burkha whose names
allegedly did not feature in the list of voters, have
allegedly cast their votes in favour of Respondent
No.3.
[III] About 4378 votes in the name of dead
persons have been allegedly polled in favour of
Respondent No.3.
[IV] Names of about 4378 dead persons
remained in the list of voters allegedly at the
behest of Respondent No.3.
[V] About 1998 legally tender votes have
allegedly not been counted.
[VI] Above 3329 persons have allegedly cast
their votes on more than one occasion only to
benefit Respondent No.3.
C. The petitioner has challenged the election in
issue do not fall within the purview of Sections 100
and 101 of the said Act and, therefore, on this
ground alone the original election petition is liable
to be dismissed in limine.
D. The pleadings in original election petition are
not the averments of material facts but are based
upon speculation and, hence, do not disclose any
13 Appln.EP35.2024
triable issue. The original election petition do not
disclose as complete cause of action.
E. The original election petition does not disclose
any source of information to allege that the ladies
wearing Burkha have cast their votes, even though
their names did not feature in the list of voters.
Further, the original election petition also does not
disclose the basis to allege that the ladies wearing
Burkha, whose names did not feature in list of
voters, have voted to increase the vote share of
Respondent No.3. The original election petition also
does not refer to any such incident to show that
ladies wearing Burkha have votes even though
their names did not feature in the list of voters.
Therefore, such a baseless and bald allegation does
not disclose any cause of action to set aside election
of a democratically elected candidate i.e.
Respondent No.3.
F. The Election Petition does not refer to any
basis to allege that about 4378 votes have been
polled in the name of dead persons and, that too, in
favour of Respondent No.3. The petitioner has not
disclosed any source of information for alleging that
4378 votes have been polled in the name of dead
persons. The original election petition does not
disclose a single instance, where a vote has been
polled in the name of a dead person. The said
14 Appln.EP35.2024
allegation is nothing but just a speculation based
upon incomplete and distorted contentions.
G. The allegation of the petitioner that about
1998 legally cast votes have not been counted is
merely based upon statement of votes polled
published on 21.05.2024 and election result
published on 04.06.2024. There is no basis and or
source of information disclosed in the original
Election Petition to contend that 1998 votes have
not been counted. Moreover, without admitting,
even if the aforesaid allegation that about 1998
votes have not been counted is taken at it’s face
value, still the same will not materially affect the
result of election in issue as Respondent No.3 has
been declared elected by margin of about 3831
votes.
H. The original election petition does not disclose
the source of information from where the election
agent of petitioner received information that votes
from about 6 Electric Voting Machines have not
been counted.
I. The original Election Petition does not
disclose basis and / or source of information to
allege that about 3329 persons have voted at more
than one place by using more than one serial
number. The petitioner has merely referred to the
names of his supporters to allege that the petitioner
15 Appln.EP35.2024
has received information from his said supporters
about multiple voting by 3329 persons. However,
the petitioner has not disclosed the source of
information from where his so called supporters
became aware of multiple voting.
J. Respondent No.3 submits that by merely
stating that the result of election in question has
been ‘materially affected’ is not sufficient to satisfy
the mandatory requirement under Section 100(1)
(d) of the said Act. The Election Petition should
clearly make out as to how the result of election has
been materially affected by the alleged acts and /
or omissions. Therefore, the original Election
Petition suffers from several patent defects and,
hence, the same is liable to be rejected.
K. The election petition cannot be based upon
mere conjectures and surmises, riding on a chance
to prove the allegations based on record maintained
by the Returning Officer. The election petition
should disclose a complete cause of action based
upon all relevant material facts.
L. The allegations in the original election
petition about many Burkha clad women voting in
favour of Respondent No.3, votes polled in the name
of dead persons to increase vote share of
Respondent No.3 and multiple voting by same
persons in favour of Respondent No.3 is not only
16 Appln.EP35.2024
baseless, but also illegal as the same breaches the
fabric of secrecy of voting. Therefore, on this
ground alone the original election petition is liable
to be dismissed with exemplary costs.
M. The original election petition does not contain
concise statements of all the material facts and is
also bereft of full particulars of so called corrupt
practices alleged by the petitioner against
respondent No.3.
N. The petitioner has not signed and verified the
original election petition as is required by the
provisions of the Code of Civil Procedure, 1908. The
petitioner has verified the pleadings and annexures
of the original election petition as if the same are
within his personal knowledge. However, petitioner
has not given the source of information on which
his pleadings and annexures are based. Moreover,
petitioner has relied upon incidents of corrupt
practice, which are witnessed by informants of
petitioner that forms sole basis of original election
petition. However, the petitioner has verified said
annexures as well as pleadings based thereupon as
if the facts mentioned therein are within
petitioner’s own personal knowledge. Hence, the
petitioner has erred by verifying the pleadings
based thereupon as if the same are within
petitioner’s own personal knowledge. The form of
affidavit submitted in support of original election
17 Appln.EP35.2024
petition is not in accordance with the Conduct of
Election Rules, 1961.
O. Respondent No.3 states that in order to
challenge the election of 1st Respondent who has
received public mandate by a democratic process,
the petitioner should have taken extra care and
should not have left any room for doubt while
making allegations. The petitioner should have
come forward with a definite plea, which should
have been supported by legally acceptable material
evidence without an iota of doubt. Hence, the
petitioner by making vague, baseless and frivolous
allegations has unnecessarily dragged respondent
no.3 to this Court.
P. The original election petition is supported
either by a primary document or reliable source of
information. The pleadings in original election
petition are not the averments of material facts but
are facts based upon speculation and, hence, do not
disclose any triable issue. The original election
petition do not disclose a complete cause of action.
Q. Subject to correction, Respondent No.3 states
that this Court has framed Rules with respect to
conduct of Election Petitions filed under the said
Act. Rule 4 of the High Court Rules provides for
territorial jurisdiction of High Court benches to try
election petitions.
18 Appln.EP35.2024
R. Respondent No.3 states that even though
judicial district of Dhule is attached to the Hon’ble
Aurangabad Bench of this Hon’ble Court for
appellate and criminal matters, however, it can be
seen that Rule 4 of the High Court Rules with
respect to conduct of Election Petitions has not
been suitably amended to include Judicial District
of Dhule within the jurisdictional limits of the
Hon’ble Aurangabad Bench of this Hon’ble Court.
Therefore, as per Rule 4 of the High Court Rules
dealing with Election Petitions, as they stand today,
the Hon’ble Aurangabad Bench of this Hon’ble
Court may not have territorial jurisdiction to try
the original election petition.
Reply of the Original Election Petitioner to the Application
under Order 7 Rule 11 of CPC read with Sections 81, 82 and 86
and other provisions of the Representation of the People Act:
7. In the election petition there is no allegation of any
corrupt practice and, hence, there is no need and requirement
to file the affidavit in Form No.25.
8. In paragraph no.8 of the application, the applicant
has tried to summaries the challenges raised in the election
petition. It is, however, pertinent to note that the said
challenges do not cover all the grounds raised in the election
petition.
19 Appln.EP35.2024
9. The learned counsel for the election petitioner
submits that the Election Commission and the Returning
Officer have filed an application at Exhibit 13 [Election / Civil
Application No.31 of 2024 in Election Petition No.2 of 2024],
wherein for the first time the election commission has brought
on record that 2028 legally tendered votes are not at all
counted. If these figures are added to the total number of votes
polled and votes counted then the difference is more than the
victory margin of the present applicant – respondent no.3 in
the election petition.
10. The learned counsel for the election petitioner
submits that the allegations made in the election petition are
on the basis of official documents prepared and supplied by the
Election Commission itself. In respect of other allegations,
foundation is laid in the pleading and the evidence part will be
a matter of trial.
11. The election petitioner submits that in the election
petition it is pointed out on the basis of the final list of voters
and the entries taken in birth and death registers by the
competent authority that names of dead persons continued in
the final list of voters. The petitioner has placed on record a
20 Appln.EP35.2024
detailed chart containing details of all such instances and the
number quoted in the petition is as per the said chart.
12. The election petitioner submits that in respect of
1998 illegal multi casting of votes, again the petitioner has
furnished the details of all such persons in the chart annexed
to the petition which again is not disputed by the applicant –
respondents no.3.
13. The election petitioner submits that an application
at Exhibit-5 is filed by the petitioner seeking direction to the
election commission to supply the details contained in Register
of Voters under Rule 17-A and 17-C along with CCTV footage.
The application was necessitated since the election commission
and the returning officer had refused to supply the same to the
petitioner vide communications dated 12.06.2024 and
29.06.2024. In view of this, it will be a matter of trial wherein
it could be tested as to whether the petitioner could prove his
case or not.
14. The election petitioner submits that it is a matter of
record that affidavit and verification is filed along with the
election petition disclosing the source of information. Even in
21 Appln.EP35.2024
the present application, it is stated in paragraph no.15 that
names of supporters are furnished as the persons who supplied
the information to the petitioner. Thus, the source of
information and details of the said source are specifically
pleaded and, hence, there is no defect in the election petition.
15. The election petition has to be read as a whole for
arriving at a conclusion that uncontroverted contentions of
the petitioner constitute material pleadings seeking trial of the
election petition. The present application does not state that
the entire petition does not contend the grounds. As a matter
of fact some of the grounds are summarized by the applicant
herself and, hence, it is apparent that the election petition does
not suffer from any defect of lack of any material particular.
16. The election petitioner submits that as per alleged
defect in verification, it is specifically denied that there is any
defect in verification of the petition or the annexures. The
entire application does not point out any specific instance of
defective verification. In absence of specific and pin pointed
objection there is no substance in the said contention of the
applicant. Moreover, in case, there is any defect in verification,
22 Appln.EP35.2024
the same is a curable defect and the election petition cannot be
dismissed for the same.
17. The election petitioner submits that the objection
based upon Rule 4 of the High Court Rules is not sustainable as
the said Rules will not override Section 80, 80-A and 81 of the
Representation of People Act, which provides that the election
petition has to be filed and tried by the High Court. Moreover,
after filing of the present election petition, the same was placed
before The Hon’ble The Chief Justice for assigning a Judge for
hearing of the petition and, accordingly, the election petition is
assigned to this Hon’ble Court. To the best of the knowledge of
the answering respondent – election petitioner, the said order
is not assailed by the applicant herein and she has submitted
to the jurisdiction of this Court by appearing through advocate
without any protest. In view of this, no prejudice is caused to
her in case the petition is tried and decided by this Court.
18. The Notification of amendment dated 22.01.1996,
issued under the States Reorganisation Act in the year 1996,
when the territorial jurisdiction in respect of Dhule district
was withdrawn from the Hon’ble Principal Seat at Bombay and
conferred the same on this Hon’ble Bench. It is pertinent to
23 Appln.EP35.2024
note that since this date the matters arising from Dhule
district are filed, entertained and decided by this Bench of the
High Court.
19. The election petitioner submits that, since, the
aforesaid date, all the matters including the election petitions
arising out of Dhule district are presented, filed and tried by
this Hon’ble Court.
20. The election petitioner submits that it is a matter of
record that this Bench was established in the year 1982 for
catering the needs of litigants from Marathwada area.
Subsequently, in the year 1988, jurisdiction of Ahmednagar
and Jalgaon district was transferred to the Aurangabad Bench
from the Principal Seat at Bombay. It is only in the year 1996,
when the jurisdiction of Dhule district is transferred to the
Aurangabad Bench.
21. The election petitioner submits that the applicant
(Original Respondent No.3) in the election petition has not
raised any dispute about the territorial jurisdiction of this
Bench to entertain and decide the present election petition on
merits. The objection of the applicant is only in respect of
24 Appln.EP35.2024
presentation of election petition before this Bench. The
applicant herein has relied upon Rule 4 of the Rules framed for
the purposes of Representation of Peoples Act for challenging
the presentation of the election petition.
22. The election petitioner submits that it is a matter of
record that Sub-rule (4) of Rule 4 provides for presentation of
election petition from the rest of the areas of Maharashtra and
other Union Territories to the Principal Seat at Bombay
provided the matters therein lies to the Principal Seat. Thus,
an election petition can be presented before the Prothonotary
if the matter from the said area lies to the Principal Seat. In the
present case it is not the case of the present applicant that
matters from Dhule district lie to the Principal seat and, hence,
there is no question of presenting the election petition to the
Prothonotary at Bombay.
23. The election petitioner submits that even
otherwise, presentation of a proceedings is always before the
Registrar / Section Officer of the court having territorial
jurisdiction to try and decide the proceedings. In the present
case, admittedly the jurisdiction to try the present election
petition is with this Bench and, accordingly, this court is
25 Appln.EP35.2024
assigned with the same under the order of The Hon’ble the
Chief Justice. In this view of the matter, in absence of any
prejudice to the respondents and, also, in absence of any officer
specifically assigned for receiving the election petition from
Dhule district, there is no merit in hyper technical objection
raised by the applicant herein.
24. The Counter affidavit is also filed by the respondent
no.3 i.e. the applicant in Application No.35 of 2024 (Exhibit-
16) to the additional affidavit in reply filed by respondent
no.1 / Original Petitioner.
JURISDICTION TO ENTERTAIN ELECTION PETITION:
25. Having considered the rival pleadings and
submissions advanced by the learned counsel for respective
parties, the preliminary legal issue that arises for
consideration is, whether the election petition is correctly
presented before the Aurangabad Bench of High Court of
Bombay and, if not, whether the petition becomes liable for
dismissal ?
26. The relevant statutory provisions relating to the
presentation of the Election Petition are noted below:-
26 Appln.EP35.2024
Section 81 of the Representation of the People Act,
1951 deals with the presentation of the election petition and
provides that an election petition shall be presented to the
High Court, and reads as under:
“REPRESENTATION OF THE PEOPLE ACT, 1951
Section 81 – Presentation of petitions
(1) An election petition calling in question any election may be
presented on one or more of the grounds specified in sub-
section (1) of section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five days
from, but not earlier than the date of election of the returned
candidate or if there are more than one returned candidate at the
election and dates of their election are different, the later of those
two dates.
Explanation.-In this sub-section, “elector” means a person who was
entitled to vote at the election to which the election petition
relates, whether he has voted at such election or not.
(2) ***
(3) …”
Section 80A of the Representation of the People Act
deals with the jurisdiction of the High Court to try an election
petition, which read as under:
“REPRESENTATION OF THE PEOPLE ACT, 1951
Section 80A – High Court to try election petitions
(1) The Court having jurisdiction to try an election petition shall be
the High Court.
(2) …
(3) …”
The word “High Court” means that the High Court
within the local limits of whose jurisdiction the election to
27 Appln.EP35.2024
which the election petition relates has been held. Section 79(e)
of the RP Act reads as under:
“79(e) “High Court” means the High Court within the local limits of
whose jurisdiction the election to which the election petition
relates has been held;”
27. It is also to be noted that in exercise of powers
under Section 51(2) of The States Reorganisation Act, 1956,
the President by order / notification dated 26.06.1984
established the permanent bench at Aurangabad, as under:
“1. Short title and commencement.-
(1) This Order may be called the High Court of Bombay
(Establishment of a Permanent Bench at Aurangabad)
Order, 1984.
(2) It shall come into force on the 27 th day of August,
1984.
2. Establishment of a Permanent Bench of the Bombay High
Court at Aurangabad.- There shall be established a permanent
bench of the High Court of Bombay at Aurangabad and such Judges
of the High Court of Bombay, being not less than four in number, as
the Chief Justice of that High Court may, from time to time,
nominate, shall sit at Aurangabad in order to exercise the
jurisdiction and power for the time being vested in that High Court
in respect of cases arising in the districts of Aurangabad, Beed,
Jalna, Latur, Nanded, Osmanabad and Parbhani:
Provided that the Chief Justice of that High Court may, in
his discretion, order that any case or any class of cases arising in
any such district shall be heard at Bombay.”
28. Thereafter by order / notification dated 22.01.1996
the President in exercise of powers under Section 51(2) of The
States Reorganisation Act, 1956 included districts of Beed and
Dhule into the jurisdiction of the permanent bench at
Aurangabad {District Beed is also mentioned in the Original
Order dated 26.06.1984}, as under:
28 Appln.EP35.2024
“…
(1) This Order may be called the High Court of Bombay
(Establishment of a Permanent Bench at Aurangabad) Amendment
Order, 1996.
(2) It shall come into force on the 26th day of January, 1996.
2. In paragraph 2 of the High Court of Bombay (Establishment
of a Permanent Bench at Aurangabad) Order, 1984, the word
“Beed”, the word “Dhule”, shall be inserted.”
29. The Rules Framed By The High Court Of Judicature
At Bombay In regard to Election Petitions Under The
Representation of The People Act, 1951 (for brevity “High
Court Presentation of Election Petition Rules”) provides for
presentation of an election petition and the relevant Clause 4,
reads as under:
“4. Election Petitions arising from areas constituting Judicial
Districts of Akola, Amravati, Bhandara, Buldhana, Chandrapur,
Gadchiroli, Nagpur, Wardha and Yeotmal shall be presented either
in person or by an Advocate duly authorised in that behalf by the
party concerned to the Additional Registrar of the Nagpur Bench
or to such other officer as the said Additional Registrar may, by
general or special order issued from time to time, appoint in this
behalf.
Election Petitions arising from the areas constituting
Judicial District of Aurangabad, Beed, Jalana, Latur, Nanded,
Osmanabad and Parbhani shall be presented either in person or by
an Advocate duly authorised in that behalf by the party concerned
to the Additional Registrar of the Aurangabad Bench or to such
other officer order issued from time to time, appoint in this behalf.
Election Petitions arising in the State of Goa which lie in the
High Court at Bombay shall be presented either in person or by an
Advocate duly authorised in that behalf by the concerned to the
Special Officer of the Panaji Bench, Goa, or to such other Officer as
the Special Officer may, by general or special order issued from
time to time, appoint in this behalf.
Election Petitions arising from the rest of the areas of the
State of Maharashtra or arsing in the residuary Union Territory of
Daman and Diu, and the Union Territory of Dadra and Nagar Haveli
which lie to the High Court of Bombay shall be presented to the
Prothonotary and Senior Master, High Court, Bombay, or such
other Officer as the Prothonotary and Senior Master may, by
29 Appln.EP35.2024special or general orders passed from time to time appoint in this
behalf.”
30. Considering the provisions noted above, it is to be
noticed that the permanent bench at Auragnabad was
established on 26.06.1984 and, thereafter, Dhule district was
included in the jurisdiction of the Aurangabad Bench,
on 22.01.1996. Considering the aforesaid legal provision, it is
apparent that after inclusion of district Dhule in the
jurisdiction of Aurangbad Bench, the cases arising from Dhule
district are to be presented before the Aurangabad Bench of
the High Court of Bombay. However, as regards the High Court
Rules for Presentation of Election Petition is concerned, there
is no corresponding amendment to include the filing of the
Election Petition from ‘Dhule’ judicial district before the
Aurangabad Bench of the High Court of Bombay.
As regards the High Court Presentation of Election
Petition Rules are concerned, Rule 4 of the High Court
Presentation of Election Petition Rules do not included Dhule
as one of the judicial districts from where the Election Petition
is to be filed before the Aurangabad Bench. The residual clause
of Rule 4 of the High Court Presentation of Election Petition
Rules provides for filling the Election Petition for rest of the
Maharashtra before the Principal Seat at Bombay and Election
30 Appln.EP35.2024
Petition needs to be presented before the Prothonotary and
Senior Master, High Court, Bombay.
31. The question is, whether the present Election
Petition arises out of a cause of action that has accrued in
Dhule district and, whether such petition is correctly
presented at the Aurangabad Bench or, whether in terms of
residual clause of Rule 4 of the High Court Presentation of
Election Petition Rules, the Election Petition for Dhule
Parliamentary Constituency has to be presented only before
the High Court of Bombay at the Principal Seat.
32. The Hon’ble Supreme Court in the case of State of
Maharashtra Vs. Narayan Shamrao Puranik and others,Civil
Appeal No.3379 of 1981, dated 25.10.1982, AIR 1983 SC 46:
MANU/SC/0045/1982, has observed that conferment of
exclusive jurisdiction to such permanent Bench to hear cases
arising in districts falling within its jurisdiction brings about a
territorial bifurcation of the High Court.
33. The Hon’ble Supreme Court in the case of State of
Maharashtra Vs. Narayan Shamrao Puranik and others
(supra), while considering the power of the Chief Justice to
31 Appln.EP35.2024
establish benches vis-a-vis power of the President to establish a
permanent bench, has observed at paragraph no.25 as under:
“25. It is clear upon the terms of Section 51 of the Act that
undoubtedly the President has the power under Sub-section
(1) to appoint the principal seat of the High Court for a new
State. Likewise, the power of the President under Sub-section
(2) thereof, after consultation with the Governor of a new
State and the Chief Justice of the High Court for that State,
pertains to the establishment of a permanent Bench or
Benches of that High Court of a new State at one or more
places within the State other than the place where the
principal seat of the High Court is located and for any
matters connected therewith clearly confer power on the
President to define the territorial jurisdiction of the
permanent Bench in relation to the principal seat as also for
the conferment of exclusive jurisdiction to such permanent
Bench to hear cases arising in districts falling within its
jurisdiction. The creation of a permanent Bench under Sub-
section (2) of Section 51 of the Act must therefore bring
about a territorial bifurcation of the High Court. Under Sub-
section (1) and Sub-section (2) of Section 51 of the Act the
President has to act on the advice of the Council of Ministers
as ordained by Article 74(1) of the Constitution. In both the
matters the decision lies with the Central Government….”
34. So also, the Division Bench of this Court in the case
of Prakash Kavathekar Vs. Bajrang Sonavane, Review Petition
(St.) No.34389 of 2018 in Writ Petition No.13766 of 2018,
dated 21.12.2018, has by relying upon the Judgment of the
Hon’ble Supreme Court in the case of Monet Ispat and Energy
Limited, 2013 10 SCC 574 observed that every Bench of the
High Court should scrupulously follow the relevant rules and
should not violate statutory provisions specifying its
jurisdiction, else the sanctity of the rules relating to
32 Appln.EP35.2024
distribution of cases between the Single, the Division Bench
and larger Benches will be lost.
35. This court in the case of Prakash Kavathekar Vs.
Bajrang Sonavane (supra) has observed as under:
“34. The Hon’ble Supreme Court in case of Monnet Ispat
and Energy Limited (supra) has held that every Bench of the
High Court should scrupulously follow the relevant rules and
should not violate statutory provisions specifyig its
jurisdiction, elese the sanctity of the rules relating to
distribution of cases between the Single, the Division Bench
and larger Benches will be lost. In my view the principles of
law laid down by the Hon’ble Supreme Court in case of
Monnet Ispat and Energy Limited (supra) would apply to the
facts of this case. Since the cause of action in this case had
arisen within the territorial jurisdiction of the Aurangabad
Bench and Rule 2 of Chapter XXXI of the bombay High Court
Appellate Side Rules clearly provides that the writ petition
arising out of such district could be filed only before the
Aurangabad Bench, the Principal Bench cannot entertain
such petition falling within the territorial jurisdiction of the
Aurangabad Bench unless the Hon’ble Chief Justice
exercises its discretionary power. This court cannot violate
the statutory provisions relating to distribution of cases
between different Benches.”
36. Similar issue was raised before this court i.e. the
authority of the Registrar of the benches of this court to
administer oath in Election Petition de-horse the Rules framed
by the High Court for presentation of Election Petition. This
court in the case of Bhagwan Rambhau Karankal Vs.
Chandrakant B. Raghuwanshi and others, Election Petition
No.2 of 1998, dated 07.04.2000, 2000 SCC OnLine Bom. 221, at
paragraphs no.25 & 28, has observed as under:
33 Appln.EP35.2024
“25. The question, however, that needs consideration is as
to whether can this Rule 9 of the Bombay High Court
Appellate Side Rules be made applicable to the present
election petition which has to be dealt with strictly in
accordance with the Rules framed by the High Court in
regard to the election petitions under the Representation of
People Act, 1951 and in the absence of any provision therein
making aforesaid rule applicable to election petition,
whether above Rule 9 can be stretched for application under
the Original Side Rules of the Bombay High Court.”
…
28. In view of this, it is clear that the officer authorised by
the High Court has to see that the affidavits are done as per
the rules before him. However, the question would be as to
whether can these Appellate Side Rules be brought into
operation for the Original Side Rules. The election petition
before the High Court is said to be an Original-Side work and
the Judges at the Benches, who are dealing with the election
petitions can be siad to be doing Original-Side work at
Benches as those cases are specially assigned to those
Judges. Generally, at the Benches of Aurangabad, Nagpur
and Goa there is no Original-Side Bench except such specially
assigned work of election petitions and that appears to be
the reasons as to why the name the Additional Registrar or
any other officer in that behalf authorised by the High Court
does not appear in Rule 197 of the Original Side Rules. That
does not mean that if such an affidavit is done before the
Additional Registrar of the High Court, that would be totally
illegal….”
37. The Hon’ble Supreme Court in the cases of Vijay
Laxmi Sadho Vs. Jagdish, Appeal, (Civil) 2720 of 2000, dated
05.01.2001, AIR 2001 SC 600 has held that the rules
formulated by the High Court under Article 225 of the
Constitution of India are much of procedural in nature and the
rules are not substantive law in themselves and the rules shall
apply so far as it is not inconsistent with the Representation of
the People Act.
34 Appln.EP35.2024
Thus, after the state reorganisation and inclusion of
Dhule in the States Reorganisation Act all matters arising from
Dhule are to be filed before the Aurangabad Bench unless the
Hon’ble The Chief Justice in it’s discretion after presenting the
petition may place the same before any other bench in exercise
of power under Section 51(3) of the States Reorganisation Act.
38. AS regards the rules framed by the High Court for
trial of election petitions under Article 225 of the Constitution
of India, the Hon’ble Supreme Court in the case of Vijay Laxmi
Sadho Vs. Jagdish (supra), at paragraph no.14 and 18, has
observed as under:
“14. The Madhya Pradesh High Court has framed Rules for
trial of election petitions under Article 225 of the
Constitution. Under Rule 9 thereof it is provided that the
Rules of the High Court shall apply, in so far as they are no
inconsistent with the Representation of the People Act, 1951
or the rules, if any, made thereunder or the Civil Procedure
Code in respect of all matters. The import of Rule 9 (supra)
was considered in Prabhu Narayan Vs. A. K. Srivastava,
(1975) 3 SCR 552 and this Court opined:
“Moreover, it appears to us that the provisions of Rule
9 of the Madhya Pradesh High Court Rules regarding
the election petitions framed by the Madhya Pradesh
High Court by reference to Rule 7 of the Madhya
Pradesh High Court Rules found in Chapter III
regarding affidavits cannot be made use of for this
purpose. The former set of rules are made under
Article 225 of the Constitution and cannot make any
substantive law and the rules themselves on a perusal
of them would show that they relate merely to
procedural matters unlike rules made under Section
122 of the Code of Civil Procedure.”
(Emphasis supplied)”
35 Appln.EP35.2024
18. Rules framed by the High Court relating to trial of
election petitions are only procedural in nature and do not
constitute “substantive law”. Those Rules have to be read
alongwith other statutory provisions to appreciate the
consequences of noncompliance with the High Court Rules.
Article 329(b) mandates that no election to either House of
Parliament or to either House of the State Legislature can be
called in question except through an election petition
presented to such authority and in such manner as is
provided for by or under any law made by the legislature.
Section 81 of the Act deals with the presentation of an
election petition while Section 82 deals with parties to the
election petition and Section 83 with contents of such a
petition.”
39. In the instant case, the parliamentary elections are
held of Dhule constituency, which consists of six assembly
constituency of which three Assembly Constituencies are of
Nasik district from where the matters are filed before the
Principal Seat. Although, some of the assembly constituencies
of Nasik district are included in the parliamentary
constituency of Dhule, the Election Petition arising from the
district of Dhule after the Presidential Order of 1996 under the
States Reorganisation Act, 1956 will lie before the Aurangabad
Bench of the High Court of Bombay notwithstanding that there
is no corresponding amendment made in the High Court Rules
for presentation of election petition as the High Court rules
framed under Article 225 of the Constitution of India are only
procedural in nature and cannot override the substantial law
i.e. the States Reorganisation Act. The elections are conducted
from Dhule of Dhule Parliamentary Constituency. The Election
36 Appln.EP35.2024
Petition arises from Dhule Parliamentary Constituency, and,
thus, after the inclusion of district Dhule in the Presidential
Order of 1996 to the Aurangabad Bench, the Election Petition
is rightly presented before the Aurangabad Bench of High
Court of Bombay.
OBJECTION AS TO COUNTING OF VOTES:
40. The Election Petitioner has stated that six EVM
machines were not counted. No further ground is raised that
non-counting of the votes of 6 EVM machines have materially
affected the elections.
Objection raised by the election petitioner to the
counting was rejected by the Niwadnuk Nirnay Adhikari,
Dhule Matdar Sangh / Returning Officer by holding that the
couting was verified at 3 stages and that there is no technical
mistake found. Every vote made and counted are same and
that there is no mistake in the same.
The election authority has filed an application
Exhibit-13 for release of the counting machines in which they
have specifically stated “That in the present case as there was
the non deletion of the mock data from the control unit
therefore, the counting from the four EVM machine was not
37 Appln.EP35.2024
done / required. The details of the those four machines are as
under:
Sr. No. Assembly Constituency Polling Station No. Total Votes
1. 08-Shindkheda 26 Parsole 590
2. 145 Shindeda 377
3. 40-Kankrale 587
115 – Malegaon outer
4. 239-A- Malegaon 474
Camp
Total 2028
41. The Election Commission has stated that votes of
these machines are not included and the same does not
materially affect the election.
42. Prima faice, no case is made out for setting aside of
the Election for the reason of non counting or irregular
counting. No such, specific ground with particulars is also
raised in the Election Petition.
OBJECTION AS TO ILLEGAL CASTING OF VOTES:
43. The next issue that arises for consideration relates
to illegal casting of votes in the name of dead persons and
multiple casting of votes in the name of same person at
different booths and, whether the Election Petition is pleaded
with all material particulars on the issue of illegal casting of
votes, so as to meet the requirement under Section 80(1) of
38 Appln.EP35.2024
the Representation of the People Act or the Election Petition
needs to be dismissed under Section 86 of the Representation
of the People Act for non compliance of provision of Section 81
of the Representation of the People Act.
44. Primarily, the issue raised in the Election Petition
pertains to the illegal casting of votes, particularly, in the
Malegaon Assembly Constituency i.e. casting of large number
of votes in the name of dead persons and multiple casting of
votes in the name of same persons.
45. The difference between the winning candidate and
the election petitioner is 3831 votes. The election petition has
also stated that in the Malegaon Central Constituency out of
02,05,588 votes polled respondent no.3 has secured 01,98,869
votes and the petitioner has received only 4,542 votes while
other candidates could not pass even 100 votes mark in the
said constituency.
46. He has also stated that the final voters list contains
at least 4378 dead persons from Malegaon Central Assembly
Constituency and the Death Register has shown the persons to
be dead and yet votes are cast in their names.
39 Appln.EP35.2024
47. The Election Petitioner has also stated that around
3329 entries of persons enrolled in final voters list are at
multiple places in the Malegaon (Central) Assembly
Constituency and in all these places they have casted votes at
multiple places.
48. The Election Petitioner has stated that an
application at Exhibit-5 is filed by the petitioner seeking
direction to the election commission to supply the details
contained in Register of Voters under Form 17-A and 17-C
along with CCTV footage. The application was necessitated
since the election commission and the returning officer had
refused to supply the same to the petitioner vide
communications dated 12.06.2024 and 29.06.2024. The
Election Petitioner has submitted that, on evidence being
produced before this court, it will be a matter of trial and it
could be tested as to whether the petitioner could prove his
case or not as regards the illegal casting of votes in large
numbers.
49. Considering the pleading of the Election Petitioner
it is to be noted that there is no prima-facie material to indicate
that votes are cast in the name of dead persons. The data is
40 Appln.EP35.2024
asked from the Election Petitioner from the Election
Commission i.e. Register maintained under Form 17-A and 17-C
of the Conduct of Election Rules, 1961 with CCTV footage so as
to verify, whether votes are cast in the name of dead persons
and multiple votes are cast in the name of same persons at
different booths. There is no affidavit by polling agents that
they have noticed votes being cast in the name of dead persons
or that the polling agent had raised objection to the casting of
the votes in the name of dead persons. It is also not stated that
the polling agents have noticed casting of votes in the name of
dead persons, however, have not objected to the casting of the
votes in the name of dead persons as they were unaware of the
demise of the voter at the relevant time. The polling agents
seats with voters list in the polling station and are aware of the
voters casting votes. There is no material to show that voting
has taken place in the name of dead person. Thus there is an
element of speculation and inquiry by this court at the
instance of the Election petitioner. The Election Petitioner has
placed on record the names of dead persons, whose names
continues to be on the electoral roll, so also, has placed names
of voters at multiple places. However, there is no evidence that
voting has taken place in the name of dead persons or that
41 Appln.EP35.2024
voting has taken place at multiple places by the same voter.
This data is called for from the Election Commission by the
Election Petitioner and only after the data that may be made
available by the Election Commission further case of the
Petitioner will either be substantiated or refuted. However, by
merely having names of dead persons on the electoral roll this
court will not presume that votes are cast in their names. The
polling agents in the booth are aware of the votes cast by
persons and an affidavit of polling agents present in the polling
station stating that votes are cast against the dead persons
would at least indicate that voting has taken place against the
name of dead persons.
50. Rule 13 of The Conduct of Elections Rules, 1961
provides for appointment of the polling agents, whereas Rule
35 provides for identification of electors, wherein the presiding
officer when an elector enters the polling station, the presiding
officer or the polling officer authorised by him in this behalf
shall check the elector’s name and other particulars with the
relevant entry in the electoral roll and then call out the serial
number, name and other particulars of the elector.
Thereafter, the polling agent present may challenge of
identity in terms of Rule 36. The polling agent may challenge
42 Appln.EP35.2024
the identity of a person by first depositing a sum of two rupees.
On such challenge being made by the polling agent, the
presiding officer has to follow a procedure and take decision of
permitting the voter either to vote or reject the same.
Rule 37 provides for safeguards against impersonation.
51. Presently, there is no material before the court to
indicate that large number of persons have cast votes against
the names of dead persons so as to materially affect the
election and this court would not enter in to inquiry of the
same.
52. The election petitioner has mentioned the names of
persons, who are residents of Malegaon and party workers
associated with the Petitioner and has submitted that during
the election they have noted that votes were polled in the name
of persons who were already dead and that these votes are
polled in favour of Respondent No.3. These pleadings are not
sufficient to enter into inquiry as to, whether votes are cast in
the names of dead persons as these are bald assertions. Only
the polling agents, who were present in the booth with the
Electoral Roll and having knowledge of the casting of votes in
43 Appln.EP35.2024
the names of dead persons can possibly make such an
assertion.
53. Thus, this court finds that the ground raised in
Section 100(1)(d)(iv) of the Representation of the People Act
is not substantiated by material particulars. This court would
not undertake an inquiry to ascertain, whether voting has
been cast in the name of dead persons or that there is multiple
voting in the name of same persons without supporting
pleadings and material in the Election Petition.
NON-FILING OF AFFIDAVIT IN FORM 25:
54. The election petitioner has not raised ground of
corrupt practice, as such, the requirement of an affidavit in
Form 25 is not necessary. At para 7 of the Election Petition the
Petitioner has narrated that Criminal Case i.e. Crime No.0283
of 2019, registered against Respondent No.3 at Niphad Police
Station under Sections 409, 406 read with Section 34 of the
Indian Penal Code and the same is pending against the
Returned Candidate (Respondent No.3). It is stated that
Respondent No.3 is aware of the crime registered against her
but has deliberately and intentionally suppressed it in her
affidavit. However, there is no pleading in the Election Petition
44 Appln.EP35.2024
that non mention of the criminal case has resulted in undue
influence on the voters and in turn constituted corrupt
practice under Section 123 of the Representation of The People
Act. The Election Petitioner has also not contended that this
case is covered within Section 100(1)(b) and / or 100(1)(d)(ii)
read with Section 123 [Corrupt Practice] of the Representation
of the People Act, rather a positive assertion is made before me
that the Election Petitioner does not make out a case of
‘Corrupt Practice’ and, as such, affidavit in Form 25 is not filed.
The Election Petition is supported by a verification clause. The
Hon’ble Supreme Court has held that non filing of affdiavt in
Form No.25 is a curable defect {A. Manju Vs. Prajwal Revanna
Alias Prajwal R and others, (2022) 3 SCC 269}. However, as
the ground of corrupt practice is not raised nor asserted before
me, the Election Petition, thus, cannot proceed on this ground
also.
55. In the election Petition, the pleadings have to be
precise, specific and unambiguous. If the allegations contained
in Election Petition do not set out grounds as contemplated in
Section 100 and do not conform to the requirement of Section
81 and 83 of the Act, the Election Petition is liable to be
rejected Under Order VII, Rule 11 of Code of Civil Procedure.
45 Appln.EP35.2024
An omission of a single material fact leading to an incomplete
cause of action or omission to contain a concise statement of
material facts on which the Election Petitioner relies for
establishing a cause of action, would entail rejection of Election
Petition Under Order VII Rule 11 read with Section 83 and 87
of the Representation of the People Act.
56. Therefore, the Application in Election Petition
No.35 of 2024 (Exhibit-16) is allowed and, consequently,
Election Petition No.2 of 2024 stands dismissed.
57. All pending applications also stand dismissed.
[ARUN R. PEDNEKER, J.]
marathe