Bombay High Court
Shrirang Appa Chandu Barne vs Raju Patil And 35 Ors on 30 January, 2025
2025:BHC-OS:1398
901.4.24 ep.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO. 2 OF 2024
IN
ELECTION PETITION NO. 4 OF 2024
Shrirang Appa Chandu Barne
R/at: House No. 163,
'Shree' Bunglow, Near Padmji
Paper Mill, Thergaon, Pune-33
No. 3 ....Applicant
IN THE MATTER BETWEEN
Adv Raju Patil
Adult, Indian Inhabitant
R/a- S. No. 176, Chaudhary Park
Wakad, Pune - 411057 ....Petitioner
Vs.
1. The Election Commission of India
Its having his office at Nirvachan Sadan
Ashoka Road, New Delhi - 110001
2. The Returning Officer,
33, Maval Parliamentary Constituency
7th Floor, PMRDA Administrative Building,
Near Akurdi Railway Station, Akurdi,
Pune - 411044
3. Shrirang Appa Chandu Barne
R/at- House No. 163, 'Shree' Bungalow,
Near Padmji Paper Mill, Thergaon,
Pune - 33
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4. District Collector & Election Officer Pune,
Collector Office Compound, Camp,
Pune- 411001
5. The Commissioner of Police, Pimpri
Chinchwad City,
Premlok Park, Chinchwad, Pune-411033
6. Rajaram Narayan Patil
At Post Chinchoti, Tal. Alibag, Dist. Raigad
Currently: A 1097, Kegaon Kharkhand
in front of Sai Baba Mandir, Kegaon Ranvad,
Tal. Uran. Dist. Raigad
7. Sanjog Bhiku Waghere Patil
Gauesh Krupa, Near PDCC Bank,
Pimpri Waghere, Pune - 411017
8. Adv. Jyotishwar Vishnu Bhosale
3306, 17G1, Indiabulls Greens
Marigold CHSL, Sector 4, Kon,
Panvel, Raigad - 410221
9. Tushar Digambar Londhe
Londhe Chawl, Tanaji Nagar,
Chinchwad, Tal. Haveli,
Dist. Pune - 411 033
10. Pankaj Prabhakar Ozarkar
Plot No. 2 Sudarshan Residency;
Spine Road, Sharad Nagar,
Chikhali Pradhikaran Chinchwad
Tal Haveli, Dist. Pune - 19
11. Prashant Ramkrishna Bhagat
R/at - 8-504, AksharIstonia,
Drongiri Nod, Uran
12. Mahesh Thakur
R/at-D/65,
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Vijay Apartment-2 CHS
Ghodbander Road, Waghbil,
Opp. Vijay Nagar Annex Club
House, Thane (W) - 400 615
13. Madhavitai Naresh Joshi
R/at - 109, Marathi Shala,
At Ambivali Post, Mangaon,
Neral, Mangaon Tarf Varedi
Raigarh
14. Yashwant Vitthal Pawar
R/at- Mudre Khurd,
Karjat, Raigad.
Maharashtra 410201
15. Rafique Rashid Qureshi
R/at-Flat No.-5, Third floor,
Satyam Apartment, In front
of Srvaminathan Hospital,
Pimpri, Pune - 19
16. Rahim Mainuddin Sayyad
R/at- Vithalnagar, I-16, Near
Vitthal Temple, Nehru Nagar,
Pimpri, Pune-18
17. Shivaji Kisan Jadhav
R/at-F.1 Prakash Housing
Society Survey. No. 8, Kalewadi
Phata, Thergaon, Pune - 411033
18. Santosh Ubale
R/at Sanjay Gandhi Nagar
Opp to Akash Ganga Society,
Pimpri, Pune City,
Dist. Pune- 411017
19. Ajay Hanumant Londhe
R/at - Kailas Nagar
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Pimpri Pune - 411017
20. Adhalge Laxman Sadashiv
R/at - P 6/15/2004,
Sector-15, Shantivan CHSL,
Near Panvel Railway Station
New Panvel (East),
Navi Mumbai, Maharashtra -
410246
21. Iqbal Ibrahim Narvdekar
R/at-House No. 320, Pada
Mohalla, In front Panvel
Municipal Corporation Panvel,
Tal. Panvel, Dist. Raigad- 410206
22. Indrajeet D. Gond
R/at - Sai Manas Flat No. 504,
Plot No. 20, Chinchrvali Shekin,
Khopoli, Raigad, Maharashtra - 410203
23. Umakant Rameshwar Mishra
R/at : Chaurainagar, Sornatane
Phata, Mumbai Pune National Highway
Somatane, Dist. Pune.
24. Kamble Maruti Aparai
R/at 101 Swami Kunj,
Ganesh Nagar, Pimple Nilakh
Pune- 411027
25. Govind Gangaram Herode
R/at Shravasti Bungalow,
Plot No. Janata 10- Opp.
Kristoriya, School, Sector No. 27
26. Chimaji Dhondiba Shinde
R/at -Flat No. 402/5B, Mansarovar
Complex, Plot No. 1,2,4,5,19 to 26,
Sector 34, Kamothe, Tal. Panvel,
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Dist. Raigad - 410209
27. Dadarao Kisan Kamble
R/at - 10, Kisan Provision Stores,
West Side to 313 Anandnagar
Slum Area, Ward No. 36,
Chinchwad, Tal.-Haveli,
Dist.-Pune - 411019
28. Praful Pandit Bhosale
R/at- Kartikya Park
Building No. 2, Wing A,
Flat No. 202, Shillotar
Raichur, Gut No. 12A Panvel,
Raigad - 410206
29. Madhukar Damodar Thorat
R/at - Sirvi Heritage
Flat No. C Wing 301
Plot No. 153/B,
Sector - 4 Karanjade Tal. Panvel
Dist. Raigad 410206
30. Manoj Bhaskar Garbade
R/at- Ashirvad Building 2 Floor,
Flat No. 4 Station Road,
Pimpri Pune - 411018
31. Mukesh Manohar Agarwal
R/at - Kamshet, Pawana Nagar
Road, Rajendra Nagar, Kamshet,
Tal-Maval, Dist.-Pune
32. Raju Maruti Kate
R/at - Pratik Niwas,
Abasaheb Pawar Nagar,
Old Sangvi, Pune - 411027
33. Rahul Nivruti Madane
R/at - Sr. No. 24/6,
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Sairaj Nivas, Walhekar Wadi
Road, Behind Ranjai Hotel,
Chinchwad, Pune - 411033
34. Suhas Manohr Rane
R/at Room No. 9, A-Wing
Third Floor, Rachana Garden
Near Manas Hospital,
Bhangarwadi, Lonavala
Pune - 410401
35. Sanjog Patil
R/at-House No. 29, At-Sarade
Post-Vasheni, Tal.-Uran,
Dist-Raigad 410206
36. Hajrat Imamsab Patel
R/at-A-99/2015, B/2
Shanti Colony Near Alphonso
School Vijaynagar, Kalewadi,
Pune - 411017 ....Respondents
Mr. Anil Y. Sakhare, Senior Advocate i/b Mr. Rohan Mirpury, Mr. Chirag
Shah, Ms. Savita Suryawanshi, Ms. Kavita Dhanuka, Ms. Bhavya
Shah for the applicant in AEP 1/2024 and AEP 2/2024 and for
respondent no. 3 in EP 4/2024
Mr. Shrikrishna Ganbavale a/w Mr. Shantanu Patil i/b Ms. Pooja Kalate
for the petitioner in EP 4/2024
Mr. Abhijit Kulkarni a/w Mr. Krushna Jaybhoy and Mr. Abhishek roy for
respondent nos. 1, 2 and 4
Mr. Simit Shah for respondent no. 20 (On VC)
CORAM : GAURI GODSE, J.
RESERVED ON : 3rd JANUARY 2025
PRONOUNCED ON: 30th JANUARY 2025
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JUDGMENT:
BRIEF FACTS:
1. This application is filed by respondent no. 3 in the election
petition. The applicant prays for rejecting the election petition under
Rule 11 of Order VII of the Code of Civil Procedure, 1908 (‘CPC‘). The
election petition is filed to challenge the election and the result of the
18th Lok Sabha election in the 33 Maval Lok Sabha constituency. The
applicant has been declared as a winning candidate after securing
692832 votes. The petitioner has secured only 670 votes. The second
highest candidate is respondent no. 7 in the election petition who has
secured 596217 votes.
2. This application for rejection of the election petition is filed on the
grounds that there are vague and bald allegations made without any
material pleadings and full particulars so as to materially affect the
election result. Following are the points raised by the applicant for
rejection of the election petition at the threshold on the ground that it is
hit by Order VII Rule 11 of CPC:
(a) There is non-compliance with Sections 82 and 83 of the
Representation of the People Act, 1951 (“The RP Act”).
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(b)Affidavit in accordance with the proviso to Section 83(1) read
with Rule 94-A of the Conduct of Elections Rules 1961 (“said
Rules”) and Form 25 not filed in the prescribed format.
(c) Material facts and full particulars are not pleaded, and the
Petition is filed on vague allegations which do not constitute any
cause of action.
(d) The petition is contrary to Section 84 of the RP Act.
SUBMISSIONS ON BEHALF OF THE APPLICANT:
3. Learned senior counsel for the applicant submits that the
election petition seeks to challenge the applicant’s election on the
grounds of alleged breach and violation of the mandatory provisions
and allegation of corrupt practice against the applicant. He submits
that the petition alleges that the former Chief Minister, Deputy Chief
Minister, and the applicant were canvassing votes in the name of
Hindu Gods by chanting “Jai Shree Ram” in every meeting and during
the election rally held on 22nd April 2024, to incite religious sentiments
displayed a photo of Ram Temple at Ayodhya with a message saying
that “The Hindu who does not belong to Shri Ram is of no use “. It is
alleged that in the said rally, the then Chief Minister Eknath Shinde and
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901.4.24 ep.docxthe then Deputy Chief Minister Ajit Pawar asked for votes in the name
of Hindu Gods.
4. Learned senior counsel for the applicant submits that the petition
alleges that on 6th May 2024, in the meeting at Pimpri Chinhwad, the
then Chief Minister Devendra Fadnavis, during his speech, made
slogans in the name of “Jai Shri Ram” and sought votes for the
applicant by using names of Hindu deities. He submits that another
allegation is that on 11th May 2024, during a rally at Dange Chowk,
Thergaon, the then Chief Minister said that ” Jo Ram ke nahin vo kisi
kaam ke nahin”.
5. Learned senior counsel for the applicant submits that the petition
thus alleges that using religious sentiments amounts to corrupt
practices, which has harmed other candidates. He submits that the
allegation in the election petition is that a comparison of polled votes
and counted votes shows a difference of 573 votes, which is a serious
discrepancy. The learned senior counsel for the applicant pointed out
the contents of the petition that alleged that (i) the certificate under
Rule 66 and Form 22 was issued illegally in favour of the applicant
without compliance with the mandatory requirements, (ii)
unexplainable discrepancy in votes polled and votes counted and the
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901.4.24 ep.docxEVM cannot be trusted, (iii) the applicant entered the counting hall with
some unknown persons, (iv) scrutiny not conducted as per Rule 56-D
of the said Rules of 1961, and (v) the Returning Officer has not
followed the guidelines issued by the Election Commission of India
and, therefore, fairness of the election is questionable. He further
pointed out the contents of the petition where the petitioner pleaded
about receiving information from some sources that government
officials helped the applicant and sought tallying of VVPAT with tallied
votes as there was doubt about the fairness of the election.
6. Learned senior counsel submitted that no specific pleadings
regarding material facts about the applicant’s consent for the alleged
boards used in the rally of the applicant are mentioned in the election
petition. He submits that all the allegations are made on vague
averments. He further submitted that the election of the applicant is
sought to be challenged on the grounds of alleged breach of
mandatory provisions of the directions issued by the Election
Commission of India as well as the commission of alleged corrupt
practices by respondent nos. 1 and 2, who are election authorities.
However, the petitioner has not made any specific allegations which
would affect the election result. Learned senior counsel thus submitted
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that the election petition is liable to be dismissed at the threshold on
the ground of non-compliance with Section 82 of the said Act.
7. Learned senior counsel for the applicant submitted that the
election petition is a statutory proceeding, an action in equity, and not
common law. He, thus, submits that an election can be challenged
only by presenting the election petition filed in accordance with part VI
of the RP Act. He further submits that the relief sought in the election
petition would indicate that the petitioner has not prayed for any further
declaration that he or any other candidate should be declared as
elected. Thus, he submits that in the absence of such relief, the
petition deserves to be rejected on the ground of misjoinder of parties
as the election petition impleads all the contesting candidates as party
respondents. Learned senior counsel further submits that the petitioner
has impleaded the Election Commission of India as well as the
Returning Officer, which is contrary to the mandate of section 82 of the
RP Act.
8. Learned senior counsel for the applicant further submits that the
petition is liable to be rejected at the threshold on the ground of non-
compliance with section 83 of the said Act as no material facts and full
particulars are pleaded in the election petition. He further submits that
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failure to plead material facts amounts to filing the election petition
without any cause of action. He thus submits that the petition is liable
to be rejected under clause (a) of Rule 11 of Order VII of CPC.
9. Learned senior counsel further submitted that pleading full
particulars as mandated under the said Act is the sine qua non to
maintain a challenge on the grounds of corrupt practice. He submits
that based on bald and vague assertions, allegations regarding alleged
corrupt practice cannot be entertained in an election petition in view of
the well-settled legal principles by the Hon’ble Apex Court. He further
submits that the petitioner has failed to file an affidavit in accordance
with the proviso to sub-section (1) of section 83 of the said Act read
with Rule 94-A of the said Rules and the Form 25 prescribed
thereunder. He submits that the petition is liable to be dismissed at the
threshold on the ground that it is contrary to section 83 of the RP Act.
He further submits that filing of such a petition based on baseless,
frivolous and vexatious allegations amounts to abuse of process of
law. He, thus, submits that neither there is any cause of action to
maintain the election petition nor any prayers in the petition deserve
any interference by this Court as the prayers in the petition are based
on vague and baseless allegations without any material facts and
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particulars. He, thus, submits that the petition is also liable to be
rejected under Rule 11 of Order VII of CPC in view of non-compliance
with statutory provisions of the RP Act, read with the said Rules.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
10. Learned counsel appearing for the petitioner relies upon the
reply filed on behalf of the petitioner. He submits that the election
petition contains all the material facts to support the allegations,
including the allegations of corrupt practice. He submits that the
necessary verification as contemplated under proviso to clause (c) of
section 83 of the RP Act, along with a supporting affidavit in Form 25
under Rule 94-A of the said Rules, is filed by the petitioner. Learned
counsel for the petitioner submits that the petition is filed against the
applicant for a declaration that the applicant, his leaders, his agents
and supporters have canvassed in the name of religion and as such,
the election of the applicant as the returning candidate is liable to be
declared null and void. He submits that the cause of action to file the
election petition is supported by all the relevant particulars and
pleadings with reference to the rally conducted on 11 th May 2024, at
Pimpri Chinchwad, Dange Chowk, Thergaon with the particulars about
dialogues of the then Chief Minister has been specifically pleaded in
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901.4.24 ep.docxthe election petition. He submits that the conduct of the then Chief
Minister in the applicant’s rally shows the use of corrupt practices by
the applicant through his leaders, agents, and supporters. He submits
that the petitioner downloaded the video clip of the rally through social
media, i.e. YouTube and thus, the cause of action has arisen based on
the specific pleadings regarding the rally conducted on 11 th May 2024.
11. Learned counsel for the petitioner further submits that the
persons conducting the rally of the applicant were canvassing votes in
the name of Hindu Gods in every meeting as well as during the
election campaign rally of 22nd April 2024. He submits that the
applicant’s supporters and agents acted on the request and directions
of the applicant to attract the voters of the Hindu religion and to incite
religious sentiments displayed by the photograph of the Ram Temple
at Ayodhya on a board printed with the slogan ” The Hindu who does
not belong to Shri Ram is of no use “. He, thus, submits that the
campaign rally attended by the applicant, his leaders and his other
agents amounts to corrupt practice to gain votes. He submits that the
election conducted in the name of religion and religious faith deserves
to be declared null and void. He, thus, submits that none of the
grounds raised on behalf of the applicant would satisfy the parameters
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CONSIDERATION OF THE SUBMISSIONS:
12. A perusal of the petition indicates that general allegations are
made against the applicant and leaders of his party. The material facts
regarding the corrupt practice are not pleaded, and the persons
alleged to have committed the corrupt practice are not named. The
allegation of corrupt practice is based on a statement made by the
then Deputy Chief Minister at the applicant’s rally. It is alleged that the
votes were sought to be secured by using the names of Hindu deities
by calling slogans such as “Jai Shri Ram”. The allegation of corrupt
practice against the applicant is also based on an alleged statement
made by the then Chief Minister at the applicant’s rally, saying that
“Aapli Nishani Ramacha Dhanushyaban” (आपली नि शाणी रामाचा ध ुष्यबाण)
and “Jo Ram ke nahin vo kisike nahin” (जो राम के हीं, वो निकसी के हीं).
These allegations are based on the boards allegedly displayed by a
nominated person at the petitioner’s rally.
13. Another allegation in the election petition pertains to counting the
votes, alleging that the difference of 573 votes was due to the conduct
of respondent no. 2 (The Returning Officer), who was responsible for
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safe custody of the votes. It is further alleged in the petition that
respondent no. 2 did not follow any guidelines. It is further alleged that
the certificate under Rule 66 in Form 22 was issued illegally in favour
of the applicant without complying with the mandatory requirement
under the law. The election petition further alleges that the discrepancy
in the votes and the votes counted through EVM is not justifiable and
remains unexplained. There is another allegation against the applicant
that he entered the premises with unknown persons. Thus, the
allegation is regarding violation of the rules, illegal and malafide
exercise of power and non-compliance by the Returning Officer. The
allegations with regard to corrupt practice are also based on
canvassing in the name of religion. With these allegations, the election
petition is filed by making the following prayers:
“a. It be declared that the Respondent no.3, his leaders,
his agents and supporters have canvassed in the name
of Religion and religious faiths and as such the election
of Respondent no.3 as Returned candidate be declared
null and void.
b. The Concerned Police Authorities be directed to
register crime against the Respondent no.3 and Mr.
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901.4.24 ep.docxEknath Sambhaji Shinde, Mr. Devendra Gangadharrao
Fadanvis being Leaders of Respondent no. 3 and agents
as well as supporters of Respondent no. 3 for committing
corrupt practices as per Sec. 123(3) and (3A) of
Representation of the People Act, 1951 and section 171
(1) (c) of Indian Penal Code.
c. The Hon’ble Court may kindly be pleased to direct the
respondent no. 1 and 2 to explain the difference in polled
votes and counted votes.
d. It be declared once the difference of vote is
established between polled votes and counted votes it is
mandatory on respondent no 2 to refer the matter to
respondent no. 1, the election commission.
e. It be declared that till the direction is received from
respondent no. 1 to respondent no. 2 in case of
difference of vote, the respondent no 2 is not empowered
to declare the election result and that respondent no. 2
has to act according to the advice/guidelines, once the
matter is referred to respondent no. 1.
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f. It be declared that the declaration by respondent no. 2
of election of respondent 3 is without powers for non
compliances with the laws, and therefore also declare
that the certificate issued to the respondent no.3 in form
22 u/r 66 to be null and void.
g. It be declared that the mandate of Rule 56D of
Conduct of Election rules is not followed by the
Respondent no.1 and 2 and as such the counting
process carried out by them be declared null and void
and VVPAT be 100% recounted.”
LEGAL PRINCIPLES:
14. In support of his submissions that the election petition is liable to
be rejected at the threshold, the learned senior counsel for the
applicant relies upon the legal principles settled by the Hon’ble Apex
Court in the following decisions;
(i) Ram Sukh v. Dinesh Agarwal,1. Proposition: – For the purpose of
Section 100(1)(d)(iv), the election petitioner must aver
specifically in what manner the result of the election in so far as it
1 (2009) 10 SCC 541
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concerned the elected candidate was materially affected due to
the alleged omission on the part of the Returning Officer. In the
absence of material facts, as contemplated in Section 83(1)(a) of
the RP Act, to constitute a complete cause of action, the petition
is liable to be rejected at the threshold on that ground.
(j) Hari Shanker Jain v. Sonia Gandhi, 2. Proposition:- “Material
facts” required to be stated are those facts that can be
considered as materials supporting the allegations made, that
would afford a basis for the allegations made in the petition and
would constitute the cause of action as understood in the Code
of Civil Procedure. It is the duty of the court to examine the
petition irrespective of any written statement or denial and reject
the petition if it does not disclose a cause of action.
(k) Karim Uddin Barbhuiya v. Aminul Haque Laskar and Ors, 3.
Proposition:- Pleadings in an election petition have to be precise,
specific, and unambiguous, and if the election petition does not
disclose a cause of action, it is liable to be dismissed in limine.
Section 83(1)(b) mandates that when the allegation of ‘corrupt
practice’ is made, the petition shall set forth full particulars of the
2 (2001) 8 SCC 233
3 2024 SCC Online SC 509
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corrupt practice, including a statement of the names of the
parties alleged to have committed such corrupt practice and the
date and place of committing such corrupt practice. If the
allegations contained in the petition do not set out the grounds
as contemplated by Section 100 and do not conform to the
requirement under Sections 81 and 83 of the Act, the petition is
liable to be rejected under Order VII Rule 11, read with Sections
83 and 87 of the RP Act.
(l) Kanimozhi Karunanidhi v. A. Santhana Kumar, 4. Proposition:-
Section 83(1)(a) of the RP Act, 1951 mandates that an Election
Petition shall contain a concise statement of material facts on
which the petitioner relies. If material facts are not stated in an
election petition, the same is liable to be dismissed on that
ground alone as the case would be covered under Clause (a) of
Rule 11 of Order VII of CPC.
(m) C. P. John v. Babu M. Palissery & Ors 5. Proposition:- Rule
94-A of the said Rules stipulates that the format of the affidavit
as prescribed in Form 25 elaborates as to the requirement of
specifically mentioning the paragraphs where the statement of
4 2023 SCC Online SC 573
5 (2014) 10 SCC 54720/31
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901.4.24 ep.docxfacts is contained and also other paragraphs where material
particulars relating to such corrupt practices are alleged. The
prescribed format also mentions as to which of those statements
of facts and material particulars are based on the personal
knowledge of the election petitioner and such of those
statements and particulars that are made are based on the
information gained by the election petitioner. Unless the election
petitioner comes forward with a definite plea of his case that the
allegation of corrupt practice is supported by legally acceptable
material evidence without an iota of doubt as to such allegation,
the election petition cannot be entertained and will have to be
rejected at the threshold.
(n) Chandrakanta Goval v. Sohan Singh Jodh Singh Kohli 6.
Proposition:- The candidate is held to be bound by the acts of
his agent because of the authority given by the candidate to
perform the act on his behalf. There is no such relationship
between the candidate and the leader in the abstract merely
because he is a leader of that party. The consent of the
candidate or his election agent is, therefore, to be pleaded and
proved if the election of the candidate is to be declared void
6 (1996) 1 SCC 378
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under section 100(1)(b) for the corrupt practice committed by the
leader.
(o) Ravindra Waikar Vs Amol Kirtikar 7. Proposition:- The election
petition that does not disclose the material facts demonstrating
grounds under Section 100 of the RP Act will have to be rejected
by invoking powers under Order VII Rule 11 of CPC.
ANALYSIS:
15. In the present case, the contents of the petition and the prayers
are general in nature. Except for prayer clause (a), all other prayers
are contrary to Section 84 of the RP Act. In the absence of any prayer
for any declaration that the petitioner or any other candidate should be
declared as elected, the petitioner has added all the contesting
candidates as party respondents. The petitioner has impleaded the
Election Commission of India as well as the Returning Officer. Thus,
the petition is contrary to the mandate of Section 82 of the said Act.
16. The allegations of breach of mandatory provisions of the
directions issued by the Election Commission of India are not
supported by any material particulars. No particulars are pleaded to
support the prayers regarding declaration that the Form 22 under Rule
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901.4.24 ep.docx66 of the said Rules is null and void and for alleged non-compliance
with the mandate of the said Rules. Vague allegations of corrupt
practices are made against respondents nos. 1 and 2, who are the
election authorities. The petitioner has not pleaded any material facts
or particulars regarding any specific allegations that would affect the
election result.
17. In paragraph 5 of the petition, a general allegation is made that
the leaders of the applicant’s party, election agent and supporters
indulged in corrupt practice on the grounds of religion to vote for the
applicant and against other candidates. A general allegation is made of
chanting religious slogans in every meeting and rally held on 22 nd April
2024. The particulars of slogans are mentioned, but no particulars are
pleaded about who did it. It is vaguely pleaded that the applicant and
party leaders asked for votes in the name of religion. There are vague
allegations of corrupt practices, such as naming the leaders and the
dates of the meetings and rallies. A general allegation of bias is made
against government officials; however, nothing is pleaded as to how it
would amount to corrupt practice. There are pleadings about obtaining
CCTV footage and video linkage on YouTube channel; however, no
material particulars are pleaded against the applicant or his consent to
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901.4.24 ep.docxany act that would constitute any corrupt practice as contemplated
under sub-section (3) or 3-A of Section 123 of the RP Act.
18. The allegations are made without disclosing any basis for
making averments regarding alleged corrupt practice. The allegation
regarding corrupt practices is based on vague averments about the
speech given by the party leaders and that the applicant’s supporters
in the campaign rally, to attract people of Hindu religion and incite
religious sentiments, displayed photos of Ram Temple at Ayodhya and
shouted religious slogans. However, these allegations are not
supported by any material particulars which would require any trial. It
is a well-established legal principle that a candidate can held to be
bound by the acts of his agent because of the authority given by the
candidate to perform the act on his behalf; however, there is no such
relationship between the candidate and the leader in the abstract
merely because a person is a leader of that party. As held by the
Hon’ble Apex Court in the decision of Chandrakanta Goval, the
consent of the candidate or his election agent is, therefore, to be
pleaded and proved if the election of the candidate is to be declared
void under section 100(1)(b) for the corrupt practice committed by the
leader.
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19. Thus, in the present case, the bald and baseless allegations
made in the petition do not satisfy the requirements of pleading
material facts within the meaning of Section 82(1)(a) of the RP Act that
could constitute any corrupt practice contemplated under Section 123
of the RP Act. Section 123 of the RP Act elaborately defines the acts
that shall be deemed to be corrupt practices for the purposes of the
RP Act. Thus, for maintaining an election petition to challenge an
election on the grounds of corrupt practice, the petition must contain
material facts within the meaning of Section 123 of the RP Act. The
material pleadings and particulars must be sufficient, which would
require a trial. Thus, in the absence of material particulars regarding
allegations of corrupt practice as contemplated under Section 123 of
the RP Act that would warrant a trial, the petition would be liable to be
rejected at the threshold.
20. The allegations regarding the certificate under Rule 66 and Form
22, discrepancy in votes polled and votes counted, the applicant
entering the counting hall with some unknown persons, scrutiny as per
the said Rules of 1961, and the Returning Officer not following the
guidelines issued by the Election Commission of India, are without any
material particulars. The allegations are innocuous. Nothing is pleaded
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901.4.24 ep.docxto indicate any breach of the statutory provisions or constitute any
corrupt practice under Section 123(3) or 3-A of the RP Act.
21. The petition contains a verification clause that says that
whatever is stated in the petition in paragraphs 1 to 29 is true and
correct to the best of the petitioner’s knowledge and based on
information. The petitioner has filed an affidavit stated to have been
filed in Form 25, under Rule 94-A of the said Rules. However, the
contents of the affidavit are not in accordance with the prescribed
Form 25. The affidavit contains a heading stating that it is filed in Form
25, under Rule 94-A of the said Rules; however, the contents are not in
accordance with the prescribed form. The particulars of the
paragraphs containing statements about the commission of the corrupt
practice and the particulars of the schedule containing the allegations,
based on personal knowledge and based on information, are not
stated in the affidavit claimed to have been filed under the prescribed
Form 25. As per Rule 94-A of the said Rules, the affidavit referred to
in the proviso to sub-section (1) of Section 83 must be filed in the
prescribed Form 25. Section 83(1), read with the proviso, mandates
that the election petition shall contain a concise statement of material
facts on which the petitioner relies by setting forth full particulars of any
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901.4.24 ep.docxcorrupt practice alleged.
22. The election petition is bereft of any pleading that the alleged
corrupt practice has materially affected the election result. Thus, the
legal principles settled by the Hon’ble Apex Court in the decision of C.
P. John, on the mandate of filing an affidavit in the prescribed Form 25,
is squarely applicable in the present case. Thus, in the present case,
as the election petition does not contain a definite plea of corrupt
practice supported by legally acceptable material evidence without any
doubt to such an allegation, the election petition cannot be entertained
and will have to be rejected at the threshold.
23. The Hon’ble Apex Court, in the decision of Hari Shanker Jain,
held that it is the duty of the court to examine the petition and reject
the petition if it does not disclose a cause of action. I have perused the
contents of the petition. There are no material facts pleaded that can
support the allegations that could constitute the cause of action to
challenge the election in accordance with the provisions of the RP Act.
24. Learned counsel for the petitioner relied upon the averments in
the petition to support the allegation of corrupt practice. Except for the
averments regarding the conduct of the applicant, his supporters and
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901.4.24 ep.docxparty leaders in the applicant’s rally, the learned counsel for the
petitioner could not show any pleadings about the particulars of facts
that would constitute corrupt practice. The petitioner relied upon the
averments regarding the downloaded video clip of the rally through
social media, i.e. YouTube. However, material particulars about the
facts and a concise statement about the allegations concerning the
video clip or a particular event are not pleaded as contemplated in
Section 83(1), and the accompanying affidavit is not in the prescribed
Form 25. Thus, as held by the Hon’ble Apex Court in the decision of
Ram Sukh, in the absence of material facts, as contemplated in
Section 83(1)(a) of the RP Act, to constitute a complete cause of
action, the petition is liable to be rejected at the threshold on that
ground.
25. The Hon’ble Apex Court, in the decision of Kanimozhi
Karunanidhi, elaborately discussed all the earlier decisions and held
that Section 83(1)(a) of the RP Act mandates that an election petition
shall contain a concise statement of material facts on which the
petitioner relies and which facts constitute a cause of action. It is
further held that such facts would include positive statements of facts
as also positive averment of negative facts. It is also held that omitting
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901.4.24 ep.docxa singular fact would lead to an incomplete cause of action. It is, thus,
held that if material facts are not stated in an election petition, the
same is liable to be dismissed on that ground alone, as the case would
be covered by clause (a) of Rule 11 of Order VII of the CPC.
26. The Hon’ble Apex Court, in the decision of Karim Uddin
Barbhuiya, held that the pleadings with regard to the corrupt practice,
as stated in Section 123 of the RP Act, have to be precise, specific and
unambiguous. It is held that if it is a corrupt practice in the nature of
undue influence, the pleadings must state the full particulars with
regard to the direct or indirect interference or attempt to interfere by
the candidate with the free exercise of any electoral right as stated in
Section 123 (2) of the RP Act. It thus held that if the allegations in the
petition do not set out the grounds as contemplated by Section 100
and do not conform to the requirement under Sections 81 and 83 of
the RP Act, the petition is liable to be rejected under Order VII Rule 11
(a), read with Section 83 of the RP Act.
27. In the present case, the allegations in the petition do not set out
the grounds as contemplated by Section 100 and do not conform to
the requirement under Sections 81 and 83 of the RP Act. Thus, in view
of the legal principles settled by the Hon’ble Apex Court in the decision
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901.4.24 ep.docxof Kanimozhi Karunanidhi and the decision of Karim Uddin Barbhuiya,
the petition is liable to be rejected under Order VII Rule 11 (a), read
with Section 83 of the RP Act.
28. In the present case, there is non-compliance with Sections 82
and 83 of the RP Act. There is no affidavit in accordance with the
proviso to Section 83(1) read with Rule 94-A of the Conduct of Election
Rules 1961 and Form 25, and material facts and full particulars are not
pleaded. The Petition is filed on vague allegations that would not
constitute any cause of action warranting any trial. The Hon’ble Apex
Court in the decision of Karim Barbhuiya held that a charge of corrupt
practice is in the nature of a criminal charge and has got to be proved
beyond doubt. Thus, the elected candidate should be put to notice of
the allegation against him with full particulars, in as much as result of
such allegation can be drastic. Election petition can oust a popularly
elected representative of the people. Hence, full and complete
particulars of the allegation of corrupt practice must be pleaded, that is
sufficient to constitute a cause of action. Therefore, failure to plead
material and full particulars must result in dismissal of the election
petition at the threshold. Thus, the election petition is liable to be
rejected at the threshold on the ground that it is hit by Order VII Rule
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901.4.24 ep.docx
11(a) of CPC, read with Sections 82 and 83 of the RP Act.
29. Hence, Application No. 2 of 2024 is allowed, and the Election
Petition No. 4 of 2024 is rejected.
[GAURI GODSE, J.]
IRESH
Digitally signed by
IRESH MASHAL
MASHAL Date: 2025.01.30
16:19:34 +0530
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