Bombay High Court
Sudhir Brijendra Jain vs Rajendra Dhedya Gavit on 23 June, 2025
2025:BHC-OS:9251
Neeta Sawant Int.Appl(L)-5808-2025-FC
A/w. EP-3-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L.) NO. 5808 OF 2025
IN
ELECTION PETITION NO. 3 OF 2025
Rajendra Dhedya Gavit .... Applicant
(Orig. Respondent)
In the matter between :
Sudhir Brijendra Jain ....Petitioner
: Versus :
Rajendra Dhedya Gavit .... Respondent
WITH
ELECTION PETITION NO. 3 OF 2025
Sudhir Brijendra Jain .... Petitioner
: Versus :
Rajendra Dhedya Gavit .... Respondent
Mr. Nitin Gangal with Mr. Chandrakant Y. Tanawde, Ms. Namita Mestry, Ms.
Prapti Karkera, Ms. Diksha Patil, Mr. Pramod B. Jedhe, Mr. Naresh B. Patil
and Mr. Milind Choudhari for the Applicant in Interim Application (L)
No.5808 of 2025 and for Respondent in Election Petition No.3 of 2025.
Smt. Neeta Karnik, Senior Advocate with Mr. Jimmy Mates Gonsalves, Mr.
Shrirang P. Katneshwarkar, Mr. Kallies Albert Alphanso and Mr. Sandeep
Gupta, i/b. Mr. Anthony Floriyen Foss, for Respondent in Interim Application
(L) No.5808 of 2025 and for the Petitioner in Election Petition No.3 of 2025.
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CORAM : SANDEEP V. MARNE, J.
Judgment Reserved On : 13 June 2025.
Judgment Pronounced On : 23 June 2025
JUDGMENT:
1) This application is filed by the original Respondent in the
Election Petition seeking rejection of the Election Petition under the
provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908
(Code).
2) The Petitioner has filed the Election Petition seeking a
declaration that the election of the Respondent in the General Election
2024 to the State Assembly from 130-Palghar-ST Assembly Constituency is
void.
3) Brief facts leading to filing of the Election Petition are that
Petitioner is a voter from 130-Palghar, ST Assembly Constituency who
claims himself to be a Social Activist. Respondent contested the election
from Assembly Constituency (130-Palghar) as an official candidate of Shiv
Sena, a registered political party. The results of the elections were declared
on 23 November 2024 in which Respondent was declared as the Elected
Candidate.
4) The Petitioner has raised objections about declarations made
by the Respondent in the Affidavit in Form-26 filed alongwith the
nomination by the Respondent. It is contended that Respondent stated
name of Smt. Rupali Gavit as his second wife (Spouse No. 2). According to
the Petitioner, such disclosure by the Respondent is not only incorrect but
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also against the format of Form No.26 prescribed under Rule 4A of the
Conduct of Election Rules, 1961 (the Election Rules). It is contended that
the second marriage of Respondent with Smt. Rupali Gavit is void under
the provisions of the Hindu Marriage Act, 1955 and therefore the
declaration made by the Respondent about Smt. Rupali Gavit as his second
wife is false. Additionally, it is contended that in the format of Form No.26
under Rule 4A, there is no provision for making any declaration of second
spouse and that therefore addition of an extra column in respect of Spouse
No.2 by the Respondent is in violation of Rule 4A of the Election Rules.
The Petitioner has accordingly challenged the election of Respondent
under the provisions of Section 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv)
read with Section 123(4) of the Representation of People Act, 1951 (the
Act).
5) This Court issued summons to the Respondent by order dated
15 January 2025. After service of summons, Respondent has appeared in
the Election Petition and has filed his Written Statement. Additionally,
Respondent has filed the present application seeking rejection of the
Election Petition under the provisions of Order VII Rule 11 of the Code.
Petitioner has filed Affidavit-in-Reply opposing the application. The
application is called out for hearing.
6) Mr. Gangal, the learned counsel appearing for the
Applicant/original Respondent submits that the Election Petition does not
disclose any cause of action for questioning the election of the
Respondent. That when averments of the Election Petition are read as a
whole, it is clear that the Petition lacks the necessary averments for the
purpose of maintaining challenge to the election of the Respondent under
the provisions of Section 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) read with
Section 123(4) of the Representation of People Act, 1951. That the entire
Election Petition is premised on declarations made by the Respondent in
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his Affidavit in Form No.26, in which he has declared Smt. Rupali Gavit as
his Spouse No.2. That mere addition of a column in Form No.26, for the
purpose of making true and correct disclosure cannot be a ground for
seeking declaration of election as void. He would rely on provisions of
Section 33B of the Act, under which the candidate is required to furnish
information only under the Act and the Election Rules. That the said
provision is in favour of the candidate which does not mandate declaration
of any information not provided for under the Act and the Election Rules.
That there is no prohibition or restriction on the candidate from making
any voluntary disclosure of information. That declaration of information
relating to marriage of the Respondent with Smt. Rupali Gavit depicts his
honesty and that therefore none of the grounds under Section 100 of the
Act are attracted in the present case.
7) Mr. Gangal would rely upon provisions of Section 83 of the
Act in support of his contention that the Election Petition does not contain
concise statement of material facts on which the Petitioner has relied upon.
That there is no averment in the Election Petition that no marriage ever
took place between the Respondent and Smt. Rupali Gavit. That therefore
there is no material averment in support of the contention of declaration
made by the Respondent to be false. That therefore no cause of action is
disclosed in the petition in support of the contention that the Respondent
has indulged into corrupt practice under Section 123(4) of the Act.
8) So far as the provision of Sections 100(d)(i) and 100(1)(d)(iv)
of the Act are concerned, Mr. Gangal would submit that there is no
averment in the petition that the result of the election has been materially
affected in any manner. That there are no averments in support of the
ground under Section 100(1)(d)(i) and in absence of pleadings about
improper acceptance of nomination, the petition deserves to be rejected.
That similar is the position in respect of ground under Section 100(1)(d)(iv)
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where non-compliance with provisions of the Act or the Election Rules has
not been borne out by the pleadings in the Election Petition.
9) Mr. Gangal would submit that Section 2 of the Hindu
Marriage Act, 1955 makes the provisions of the Act inapplicable to tribal
persons. That Respondent is admittedly a tribal person belonging to Bhil
Community and therefore there is no prohibition on performance of
second marriage. That otherwise there is a custom of polygamy in the Bhil
Community. All that is done by the Respondent is to make true disclosure
of information relating to his marriage with Smt. Rupali Gavit. That if a
candidate belongs to Muslim Community and has entered into more than
one marriage, he is bound to disclose names of his spouses by adding
necessary columns in Form No.26 and that therefore mere addition of
columns in the Form, would not mean improper acceptance of the
nomination.
10) Mr. Gangal would accordingly submit that in absence of
necessary averments in the Election Petition for making out a valid ground
of challenge to the election of the Respondent under Section 100(1)(b),
100(1)(d)(i) and 100(1)(d)(iv) read with Section 123(4) of the
Representation of People Act, 1951, the petition deserves to be rejected
under the provisions of Order VII Rule 11 of the Code. In support of his
contentions, Mr. Gangal would rely upon the following judgments:
i. Union of India Versus. Association for Democratic Reforms and
another1
ii. People’s Union for Civil Liberties (PUCL) and another Versus.
Union of India and another2
iii. Kanimozhi Karunanidhi Versus. A. Santhana Kumar and Others3
iv. Ravindra Dattaram Waikar Versus. Amol Gajanan Kirthikar and
others4
1
(2002) 5 SCC 294
2
(2003) 4 SCC 399
3
2023 SCC OnLine SC 573
4
2024 SCC OnLine Bom 3828______________________________________________________________________________
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Neeta Sawant Int.Appl(L)-5808-2025-FC
A/w. EP-3-2025v. Dilip Bhausaheb Lande In the Matter Between Khan Mohammed
Arif Lallan Versus. Dilip Bhausaheb Lande and others5
vi. Karikho Kri Versus. Nuney Tayang and another6
vii. Karim Uddin Barbhuiya Versus. Aminul Haque Laskar and others7
viii. Santosh Versus. Nitin Jairam Gadkari8
ix. T. R. Baalu Versus. I. S. Purushothaman and others9
11) The petition is opposed by Ms. Karnik, the learned Senior
Advocate appearing for the original Petitioner. She would submit that the
Election Petition contains the necessary averments for maintaining a valid
challenge to the election of the Respondent. She would submit that the
Election Petition must be read as a whole and upon holistic reading of the
averments in the Election Petition, it can barely be contended that the
petition does not disclose cause of action for challenging Respondent’s
election. She would submit that the averments in paras-7 and 14 of the
memo of Election Petition contains the necessary averments of
Respondent making false statement in his nomination form within the
meaning of Section 123(4) of the Act, thereby committing corrupt practice
for setting aside the election under Section 100(1)(b) of the Act. That Smt.
Rupali Gavit cannot be considered as legally wedded wife of the
Respondent and that therefore declaration made by him about Smt. Rupali
Gavit being his wife is false to the knowledge of the Respondent. That
there is necessary averment in the memo of the Petition about Smt. Rupali
Gavit not being the wife of the Respondent and about falsity in the
declaration made by him. She would submit that addition of unnecessary
and false information about Smt. Rupali Gavit as Spouse No.2 amounts to
violation of Rule 4A of the Election Rules prescribing format of filing an
Affidavit by the candidate. That the Affidavit must be strictly in accordance
with the said format and that there is no room for tinkering with the said5
2022 SCC OnLine Bom 94
6
2024 SCC OnLine SC 519
7
2024 SCC OnLine SC 509
8
2025 SCC OnLine Bom 644
9
2005 4 L.W. 617______________________________________________________________________________
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A/w. EP-3-2025format. Any change in the format would necessarily render the acceptance
of nomination to be improper thereby attracting the ground prescribed
under Section 100(1)(d)(i) of the Act. That the Returning Officer ought to
have returned the nomination form of the Respondent after noticing
modifications in the columns made by the Respondent. That since the
Form was defective, the same warranted outright rejection. That once the
acceptance of nomination itself is found to be erroneous and improper, it is
not necessary for the Election Petitioner to additionally prove that the
result of the election was materially affected by such improper acceptance
of the nomination.
12) Ms. Karnik would further submit that declaration of Smt.
Rupali Gavit being spouse of the Respondent was deliberately and falsely
made with a view to exert undue influence on the voters thereby attracting
provisions of Section 123(4) of the Act. She would submit that there are
necessary averments in ground clauses- 8, 10(m) and (n) in the Election
Petition in support of the ground of undue influence. That Smt. Rupali
Gavit is from local tribal community whereas the Respondent hails from
Nandurbar and therefore false declaration of marriage with Smt. Rupali
Gavit was deliberately made in Form 26 with a view to influence the tribal
voters in the community. That the constituency was reserved for ST
community and Respondent has largely benefited on account of disclosure
made about his marriage with Smt. Rupali Gavit from local tribal voters in
Affidavit in Form 26.
13) Ms. Karnik would accordingly submit that the memo of
Election Petition contains necessary averments for taking the Election
Petition to trial. That the Petitioner must be given opportunity to lead
evidence to substantiate and prove the averments made in the memo of the
Election Petition. That the requirement under Section 83 is to only make a
concise statement of facts and it is unnecessary to plead every possible______________________________________________________________________________
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A/w. EP-3-2025detail. That once an averment is made that the declaration made in the
nomination form is false, the Petitioner must be given an opportunity to
prove the said allegation by leading evidence. In support of her contention,
Ms. Karnik has relied upon following judgments:-
i. Liverpool & London S.P. & I Association Ltd. Versus. M.V. Sea
Success I and another10
ii. Sardar Harcharan Singh Brar Versus. Sukh Darshan Singh and
others11
iii. Virender Nath Gautam Versus. Satpal Singh and others12
iv. Ashraf Kokkur Versus. K.V. Abdul Khader and others 13
v. Kisan Shankar Kathore Versus. Arun Dattatray Sawant and others 14
vi. Madiraju Venkata Ramana Raju Versus. Peddireddigari
Ramachandra Reddy and others15
vii. Union of India Versus. Association for Democratic Reforms and
another16
viii. People’s Union for Civil Liberties (PUCL) and another Versus.
Union of India and another (supra)
ix. Bhim Rao Baswanth Rao Patil Versus. K. Madan Mohan Rao and
others17
x. S. P. Chengalvaraya Naidu (Dead) by LRs Versus. Jagannath (Dead)
by LRs and others18
xi. Mairemban Prithviraj alias Prithviraj Singh Versus. Pukhrem
Sharatchandra Singh19
xii. Arjun Panditrao Khotkar Versus. Kailash Kushanrao Gorantyal and
others20
xiii. Karikho Kri Versus. Nuney Tayang and another (supra)
14) On above submissions, Ms. Karnik would pray for dismissal
of the application filed by the Respondent.
15) Rival contentions of the parties now fall for my consideration.
10
(2004) 9 SCC 512
11
(2004) 11 SCC 196
12
(2007) 3 SCC 617
13
(2015) 1 SCC 129
14
(2014) 14 SCC 162
15
(2018) 14 SCC 1
16
(2002) 5 SCC 294
17
(2023) 18 SCC 231
18
(1994) 1 SCC 1
19
(2017) 2 SCC 487
20
(2020) 7 SCC 1______________________________________________________________________________
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16) The original Petitioner has filed the petition challenging the
Respondent’s election from 130-Palgahar (ST) Assembly Constituency by
raising grounds under Section 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) read
with Section 123(4) of the Act. It would therefore be necessary to
reproduce provisions of Section 100 of the Act, which enumerates the
grounds on which the election can be declared to be void. Section 100 of
the Act provides thus:-
100. Grounds for declaring election to be void.–
(1) Subject to the provisions of sub-section (2) if the High court is of opinion–
(a) that on the date of his election a returned candidate was not qualified,
or was disqualified, to be chosen to fill the seat under the Constitution or
this Act or the Government of Union Territories Act, 1963 (20 of 1963);
or
(b) that any corrupt practice has been committed by a returned candidate
or his election agent or by any other person with the consent of a
returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected–
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate [by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or
the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under
this Act,
the High Court shall declare the election of the returned candidate to be void.
(2)] If in the opinion of [the High Court], a returned candidate has been guilty by
an agent, other than his election agent, of any corrupt practice *** but the High
Court] is satisfied–
(a) that no such corrupt practice was committed at the election by the
candidate or his election agent, and every such corrupt practice was
committed contrary to the orders, and [without the consent], of the
candidate or his election agent;
* * * * *
(c) that the candidate and his election agent took all reasonable means for
preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt
practice on the part of the candidate or any of his agents, then [the High
Court] may decide that the election of the returned candidate is not void.
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17) Section 83 of the Act deals with contents of the Election
Petition and provides thus:-
83. Contents of petition.–
(1) An election petition–
(a) shall contain a concise statement of the material facts on which the
petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the
petitioner alleges, including as full a statement as possible of the names of
the parties alleged to have committed such corrupt practice and the date
and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down
in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of
pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall
also be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof.](2) Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition]
18) The combined reading of provisions of Section 100 and
Section 83 of the Act would mean that the Election Petition needs to
contain concise statement of material facts on the basis of which grounds
enumerated under Section 100 of the Act are sought to be made out.
When allegation of corrupt practice is raised, the Election Petition needs to
include a full statement of names of parties alleged to have committed such
corrupt practice and the date and place of commission of each such
practice. Therefore, an Election Petition which does not comply with the
provisions of Section 83 of the Act by not disclosing either the concise
statement of material facts or full particulars of corrupt practice necessarily
attracts provisions of Order VII Rule 11 of the Code, under which the
Election Petition can be rejected. This is because Election Petition is a
statutory remedy and not an action in equity or a remedy in common law.
Since the Act is a complete and self-contained Code, strict compliance with
provisions of the Act is a mandatory requirement while exercising the
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remedy under the said Act. Reference in this regard can be made to the
Apex Court judgment in Jyoti Basu and others Versus. Debi Ghosal and
others21wherein it is held as under :-
8. …. An election petition is not an action at common law, nor in equity.
It is a statutory proceeding to which neither the common law nor the
principles of equity apply but only those rules which the statute makes
and applies. It is a special jurisdiction, and a special jurisdiction has
always to be exercised in accordance with the statute creating it.
19) In Kanimozhi Karunanidhi (supra), the Apex Court has
summarised the legal position in para-28 of the judgment by examining
various judgments rendered in the past, as under :-
28. The legal position enunciated in afore-stated cases may be summed
up as under:–
i. Section 83(1)(a) of 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
by Clause (a) of Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for the
allegations made in the petition and would constitute the cause of action,
that is every fact which it would be necessary for the plaintiff/petitioner
to prove, if traversed in order to support his right to the judgment of
court. Omission of a single material fact would lead to an incomplete
cause of action and the statement of plaint would become bad.
iii. Material facts mean the entire bundle of facts which would constitute
a complete cause of action. Material facts would include positive
statement of facts as also positive averment of a negative fact, if
necessary.
iv. In order to get an election declared as void under Section 100(1)(d)(iv)
of the RP Act, the Election petitioner must aver that on account of non-
compliance with the provisions of the Constitution or of the Act or any
rules or orders made under the Act, the result of the election, in so far as
it concerned the returned candidate, was materially affected.
v. The Election petition is a serious matter and it cannot be treated lightly
or in a fanciful manner nor is it given to a person who uses it as a handle
for vexatious purpose.
vi. An Election petition can be summarily dismissed on the 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 petitioner
relies for establishing a cause of action, in exercise of the powers under
Clause (a) of Rule 11 of Order VII CPC read with the mandatory
requirements enjoined by Section 83 of the RP Act.
21
(1982) 1 SCC 691
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20) The Apex Court thereafter held that mere bald and vague
allegations would not constitute sufficient compliance of requirement of
stating material facts in the Election Petition. The Apex Court held in
paras-31 to 33 as under :-
31. Mere bald and vague allegations without any basis would not be
sufficient compliance of the requirement of stating material facts in the
Election Petition. As well settled not only positive statement of facts, even
a positive statement of negative fact is also required to be stated, as it
would be a material fact constituting a cause of action. The material facts
which are primary and basic facts have to be pleaded by the Election
petitioner in support of the case set up by him to show his cause of action
and omission of a single material fact would lead to an incomplete cause
of action, entitling the returned candidate to pray for dismissal of
Election petition under Order VII Rule 11(a) CPC read with Section
83(1)(a) of the RP Act.
32. It is also significant to note that an affidavit in Form 26 along with the
nomination paper, is required to be furnished by the candidate as per
Rule 4A of the said Rules read with Section 33 of the said Act. The
Returning Officer is empowered either on the objections made to any
nomination or on his own motion, to reject any nomination on the
grounds mentioned in Section 36(2), including on the ground that there
has been a failure to comply with any of the provisions of Section 33 of
the Act. However, at the time of scrutiny of the nomination paper and
the affidavit in the Form 26 furnished by the Appellant-returned
candidate, neither any objection was raised, nor the Returning Officer
had found any lapse or non-compliance of Section 33 or Rule 4A of the
Rules. Assuming that the election petitioner did not have the opportunity
to see the Form No. 26 filled in by the Appellant-returned candidate,
when she submitted the same to the Returning Officer, and assuming that
the Returning Officer had not properly scrutinized the nomination paper
of the appellant, and assuming that the election petitioner had a right to
question the same by filing the Election petition under Section 100(1)(d)
(iv) of the said Act, then also there are no material facts stated in the
petition constituting cause of action under Section 100(1)(d)(iv) of the RP
Act. In absence of material facts constituting cause of action for filing
Election petition under Section 100(1)(d)(iv) of the said Act, the Election
petition is required to be dismissed under Order VII Rule 11(a) CPC read
with Section 13(1)(a) of the RP Act.
33. As elaborately discussed earlier, Section 83(1)(a) of RP Act mandates
that an Election petition shall contain a concise statement of material
facts on which petitioner relies, and which facts constitute a cause of
action. Such facts would include positive statement of facts as also
positive averment of negative fact. Omission of a singular fact would lead
to incomplete cause of action. So far as the present petition is concerned,
there is no averment made as to how there was non-compliance with
provisions of the Constitution or of RP Act or of the Rules or Order
made thereunder and as to how such non-compliance had materially______________________________________________________________________________
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A/w. EP-3-2025affected the result of the election, so as to attract the ground under
Section 100(1)(d)(iv) of the RP Act, for declaring the election to be void.
The omission to state such vital and basic facts has rendered the petition
liable to be dismissed under Order VII, Rule 11(a) CPC read with
Section 83(i)(a) of the RP Act, 1951.
21) In Ravindra Dattaram Waikar (supra), this Court has examined
the entire case law relating to the strict requirement of pleadings for
maintaining a valid Election Petition and has held in paras-26 and 31 as
under:
26. Before proceeding ahead with the examination as to whether the
Election Petition filed by the Petitioner discloses concise statement of
material facts demonstrating grounds under Section 100(1)(d)(iii) and (iv)
of the RP Act, it would be necessary to take stock of few judgments
dealing with the necessity for pleading of material facts for maintenance
of an Election Petition. By now it is well settled position of law that
Election Petition is a statutory remedy and not an action in equity or a
remedy in common law. It is also equally well settled position that RP Act
is a complete and self-contained Code. Therefore, strict compliance with
the provisions of the RP Act is mandatory requirement for exercising the
statutory remedy under the RP Act. ….
31. The conspectus of the above discussion is that for maintaining an
Election Petition and for taking it to the stage of trial, it is necessary that
there is strict compliance with the provisions of Section 83(1)(a) of the
RP Act. The concise statement of material facts must constitute a
complete cause of action. Failure on the part of the Election Petitioner to
raise necessary pleadings to make out a case of existence of ground under
Section 100(1)(d)(iii) or (iv) of the RP Act would necessarily result in
dismissal of Election Petition by invoking powers under Order VII Rule
11 of the Code. ….
22) Having set out the legal position governing the strict
requirement of pleadings in the memo of Election Petition, I now proceed
to examine whether the Petitioner has raised the requisite pleadings as
required under Section 83 of the Act.
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23) The Petitioner has sought declaration of election of the
Respondent to be void by invoking provisions of Section 100(1)(b), 100(1)
(d)(i) and 100(1)(d)(iv) read with Section 123(4) of the Act. This is clear
from the following pleadings on para-3 of the Election Petition. The same
read as under:-
3. By the present Election Petition, the Petitioner is challenging an
election of the Respondent for declaring the election of Respondent to be
void under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) and 123(4) of
the Representation of the People Act, 1951. It is case of the Petitioner
that the Respondent has published Statement of Fact, which is false with
regard to addition of name of 2nd Wife of the Respondent.
24) Thus, the Election Petitioner has raised the grounds of:-
(i) Corrupt practice under Section 100(1)(b) read with Section
123(4),
(ii) Improper acceptance of nomination under Section 100(1)(b) and
100(1)(d)(i) and
(iii) Non-compliance with the provisions of Constitution/Act/
Rules/Orders under the Act under Section 100(1)(d)(iv).
25) The first objection of the Petitioner is about the manner in
which the Respondent has filed his Affidavit in Form 26 prescribed under
Rule 4A of the Election Rules. In the said Affidavit, the Respondent made
following declaration in para-4 relating to details of PAN and status of
filing Income Tax Returns :
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return:
Sr.No. Names PAN The financial Total Income shown in
year for which Income Tax Return (in
the last Income Rupees) for the last five
tax has been Financial Years completed
filed (as on 31 st March)
1 Self – AAUPG8522B 2023-24 (i) 1708420/- F.Y. 2023-24
RAJENDRA (ii) 1264470/- F.Y. 2022-23
DHEDYA (iii) 2277460/- F.Y. 2021-
GAVIT 22
(iv) 2335140/- F.Y. 2020-
21 (v) 4080160/- F.Y. 2019-20 2 Spouse - 1 AXEPG1946N 2023-24 (i) 632540/- F.Y. 2023-24 USHA (ii) 512799/- F.Y. 2022-23 RAJENDRA (iii) 1250549/- F.Y. 2021- GAVIT 22 (iv) 500000/- F.Y. 2020-21 (v) 500000/- F.Y. 2019-20 Spouse - 2 AMDPT6017B 2023-24 (i) 905794/- F.Y. 2023-24 RUPALI (ii) 749465/- F.Y. 2022-23 RAJENDRA (iii) 592662/- F.Y. 2021-22 GAVIT (iv) 502600/- F.Y. 2020-21 (v) 469561/- F.Y. 2019-20 3 HUF NIL NIL NOT APPLICABLE (if Candidate is NOT APPLICABLE Karta/ NOT APPLICABLE Coparcener) NOT APPLICABLE NOT APPLICABLE 4 Dependent - 1 EOVPG0484P NIL NOT APPLICABLE SON - NOT APPLICABLE RAJVEER NOT APPLICABLE RAJENDRA NOT APPLICABLE GAVIT NOT APPLICABLE 5 Dependent - 2 NOT NOT NOT APPLICABLE APPLICABLE APPLICABLE NOT APPLICABLE NOT APPLICABLE NOT APPLICABLE NOT APPLICABLE 6 Dependent - 3 NOT NOT NOT APPLICABLE APPLICABLE APPLICABLE NOT APPLICABLE NOT APPLICABLE NOT APPLICABLE NOT APPLICABLE 26) The objection of the Petitioner is about addition of the
column ‘Spouse No. 2’ in the said Affidavit filed under Form 26. According
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to the Petitioner the format prescribed under Rule 4A does not include any
column for making declaration of income of second spouse. It is therefore
contended that addition of column ‘Spouse No .2’ in the Affidavit renders
the nomination form to be defective and accordingly the acceptance
becomes improper within the meaning of Section 100(1)(d)(iv) of the Act.
27) The Respondent, on the other hand, has defended his action
by contending that he has made true and honest disclosure in the
declaration about his marriage with Smt. Rupali Gavit and therefore such
honest declaration would not render the nomination form to be defective.
Reliance is placed on Apex Court judgment in Union of India Versus.
Association for Democratic Reforms (supra) in which the Apex Court has
highlighted the need for sufficient information to the members of a
democratic society by the candidates. After noticing that there was void in
the Act and the Rules, the Apex Court had issued directions to the Election
Commissioner to call for information from each candidate on various
aspects particularly with regard to the prosecution, conviction etc. Paras-
34, 45 and 48 of the judgment are relevant which read thus :-
34. From the aforequoted paragraph, it can be deduced that the members
of a democratic society should be sufficiently informed so that they may
influence intelligently the decisions which may affect themselves and this
would include their decision of casting votes in favour of a particular
candidate. If there is a disclosure by a candidate as sought for then it
would strengthen the voters in taking appropriate decision of casting their
votes.
45. Finally, in our view this Court would have ample power to direct the
Commission to fill the void, in the absence of suitable legislation covering
the field and the voters are required to be well informed and educated
about contesting candidates so that they can elect a proper candidate by
their own assessment. It is the duty of the executive to fill the vacuum by
executive orders because its field is coterminous with that of the
legislature, and where there is inaction by the executive, for whatever
reason, the judiciary must step in, in exercise of its constitutional
obligations to provide a solution till such time the legislature acts to
perform its role by enacting proper legislation to cover the field. The
adverse impact of lack of probity in public life leading to a high degree of
corruption is manifold. Therefore, if the candidate is directed to declare
his/her spouse’s and dependants’ assets –immovable, movable and______________________________________________________________________________
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A/w. EP-3-2025valuable articles — it would have its own effect. This Court
in Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932]
dealt with the incident of sexual harassment of a woman at work place
which resulted in violation of fundamental right of gender equality and
the right to life and liberty and laid down that in the absence of
legislation, it must be viewed along with the role of the judiciary
envisaged in the Beijing Statement of Principles of Independence of
Judiciary in the LAWASIA region. The decision has laid down the
guidelines and prescribed the norms to be strictly observed in all work
places until suitable legislation is enacted to occupy the field. In the
present case also, there is no legislation or rules providing for giving
necessary information to the voters. As stated earlier, this case was relied
upon in Vineet Narain case [(1998) 1 SCC 226 : 1998 SCC (Cri) 307]
where the Court has issued necessary guidelines to CBI and the Central
Vigilance Commission (CVC) as there was no legislation covering the
said field to ensure proper implementation of the rule of law.
48. The Election Commission is directed to call for information on
affidavit by issuing necessary order in exercise of its power under Article
324 of the Constitution of India from each candidate seeking election to
Parliament or a State Legislature as a necessary part of his nomination
paper, furnishing therein, information on the following aspects in relation
to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any
criminal offence in the past — if any, whether he is punished with
imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the candidate is
accused in any pending case, of any offence punishable with
imprisonment for two years or more, and in which charge is framed or
cognizance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate
and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any
public financial institution or government dues.
(5) The educational qualifications of the candidate.
28) It is the contention of the Petitioner that disclosure of
information relating to his marriage with Smt. Rupali Gavit is in the spirit
of ratio of the judgment in Union of India Versus. Association for Democratic
Reforms. Reliance is also placed by the Respondent on the Apex Court
judgment in People’s Union for Civil Liberties (supra) by which provisions
of Section 33B of the amended Act are held to be illegal. Section 33B of
the Act restricts the liability of the candidate to disclose or furnish only
such information which is required to be disclosed or furnished under the
Act or the Rules. By referring to the judgment in Association for Democratic______________________________________________________________________________
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the Act by observing in paras-78 and 79 as under:-
78. What emerges from the above discussion can be summarised thus:
(A) The legislature can remove the basis of a decision rendered by a
competent court thereby rendering that decision ineffective but the
legislature has no power to ask the instrumentalities of the State to
disobey or disregard the decisions given by the court. A declaration that
an order made by a court of law is void is normally a part of the judicial
function. The legislature cannot declare that decision rendered by the
Court is not binding or is of no effect.
It is true that the legislature is entitled to change the law with
retrospective effect which forms the basis of a judicial decision. This
exercise of power is subject to constitutional provision, therefore, it
cannot enact a law which is violative of fundamental right.
(B) Section 33-B which provides that notwithstanding anything contained
in the judgment of any court or directions issued by the Election
Commission, no candidate shall be liable to disclose or furnish any such
information in respect of his election which is not required to be
disclosed or furnished under the Act or the rules made thereunder, is on
the face of it beyond the legislative competence, as this Court has held
that the voter has a fundamental right under Article 19(1)( a) to know the
antecedents of a candidate for various reasons recorded in the earlier
judgment as well as in this judgment.
The Amended Act does not wholly cover the directions issued by this
Court. On the contrary, it provides that a candidate would not be bound
to furnish certain information as directed by this Court.
(C) The judgment rendered by this Court in Assn. for Democratic
Reforms [Ed.: See full text at 2003 Current Central Legislation, Pt. II, at
p. 3] has attained finality, therefore, there is no question of interpreting
constitutional provision which calls for reference under Article 145(3).
(D) The contention that as there is no specific fundamental right
conferred on a voter by any statutory provision to know the antecedents
of a candidate, the directions given by this Court are against the statutory
provisions is, on the face of it, without any substance. In an election
petition challenging the validity of an election of a particular candidate,
the statutory provisions would govern respective rights of the parties.
However, voters’ fundamental right to know the antecedents of a
candidate is independent of statutory rights under the election law. A
voter is first citizen of this country and apart from statutory rights, he is
having fundamental rights conferred by the Constitution. Members of a
democratic society should be sufficiently informed so that they may cast
their votes intelligently in favour of persons who are to govern them.
Right to vote would be meaningless unless the citizens are well informed
about the antecedents of a candidate. There can be little doubt that
exposure to public gaze and scrutiny is one of the surest means to cleanse
our democratic governing system and to have competent legislatures.
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(E) It is established that fundamental rights themselves have no fixed
content, most of them are empty vessels into which each generation must
pour its content in the light of its experience. The attempt of the Court
should be to expand the reach and ambit of the fundamental rights by
process of judicial interpretation. During the last more than half a
decade, it has been so done by this Court consistently. There cannot be
any distinction between the fundamental rights mentioned in Chapter III
of the Constitution and the declaration of such rights on the basis of the
judgments rendered by this Court.
79. In the result, Section 33-B of the Amended Act is held to be illegal,
null and void. However, this judgment would not have any retrospective
effect but would be prospective. Writ petitions stand disposed of
accordingly.
29) It is contended on behalf of the Respondent that though
Section 33B of the Act has been struck down by the Apex Court, the same
had not put any restriction on the candidate making any voluntary
disclosure over and above the one prescribed in the Format. Infact, the
Apex Court in People’s Union for Civil Liberties , has found that restriction
of liability on the candidates in disclosing or furnishing information in
addition to the one provided under the Act or the Rules to be illegal and
against the spirit of the ratio of its judgment in Association for Democratic
Reforms. In my view, therefore mere disclosure of information in addition
to the one required in the prescribed format would not ipso-facto render
nomination to be defective. Therefore, addition of column for giving
particulars of income and income tax of Spouse No. 2 in the Affidavit in
Form 26 by the Respondent does not constitute a valid ground of challenge
under Section 100(1)(d)(i) of the Act. The averments made by the
Petitioner in this regard do not make out ground of improper acceptance of
the nomination under Section 100(1)(d)(i) of the Act. In absence of
necessary averments disclosing improper acceptance of the nomination,
the Election Petition cannot be maintained and deserves rejection under
Order VII Rule 11 of the Code.
30) Coming to the ground under Section 100(1)(d)(iv) of the Act,
here again the ground sought to be urged is premised on modification of
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Form 26 by the Respondent thereby violating the provisions of Rule 4A of
the Election Rules. As a matter of fact, Rule 4A of the Election Rules
provides thus :-
4A. Form of affidavit to be filed at the time of delivering nomination
paper.-
The candidate or his proposer, as the case may be, shall, at the time of
delivering to the returning officer the nomination paper under sub-section
(1) of section 33 of the Act, also deliver to him an affidavit sworn by the
candidate before a Magistrate of the first class or a Notary in Form 26.
31) Thus, Rule 4A mandates the candidate or his proposer, to
deliver an Affidavit sworn by the candidate in Form 26. Form 26 is an
Affidavit to be filed by the Candidate alongwith nomination paper making
disclosure of various information required in the said Form. Para-4 of the
said Affidavit deals with details of PAN and status of filing of Income-Tax
Returns by the candidate himself, his/her spouse, HUF and dependents.
Column No.1 of para-4 of Form 26 Affidavit mandates disclosure of
details of PAN and status of filing of Income Tax Returns by the spouse.
In the present case, Respondent has two spouses and has accordingly
disclosed details of PAN and status of filing of Income Tax Returns by
both the spouses. As observed above, the Respondent has made true and
honest disclosure about details of PAN and status of filing of Income Tax
Returns by both his spouses in Form 26 Affidavit. There is no averment in
the petition as to how disclosure of details of PAN and status of filing of
Income Tax Returns of Smt. Rupali Gavit (Spouse No. 2) violates
provisions of Rule 4A of the Election Rules. On the other hand, non-
disclosure of such details would have attracted one of the grounds for
maintaining a valid Election Petition under Section 100 of the Act.
However, merely because the Respondent made true disclosure of details
of PAN and status of Income Tax Returns of his second spouse, it cannot
be contended that there is any violation of Rule 4A of Election Rules on
his part. In my view therefore the memo of Election Petition lacks concise
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statement of material particulars demonstrating violation of provisions of
Constitution/Act of 1951/Rules made thereunder for maintaining a valid
Election Petition.
32) In my view therefore, the act of returned candidate of
addition of a column in the Form 26 Affidavit for making true and honest
disclosure of information would neither render the nomination form
defective nor would amount to violation of provisions of the Election
Rules. Respondent has contended that he belongs to Bhil tribal community
in which custom of polygamy exists and that his second marriage is
permissible. However, it is not necessary to go into the issue of validity or
otherwise of the second marriage performed by Respondent. Issue is
whether there is falsity in the claim made by the Respondent and whether
disclosure of factum of second marriage by adding a column in the Form
26 Affidavit would attract a ground under Section 100 of the Act? The
answer to the question would emphatically be in the negative. There may
be cases where a candidate belonging to particular religion, in which
polygamy is not prohibited, has contracted multiple marriages. If
contention of Petitioner about impermissibility to add column in Form 26
Affidavit is accepted, such candidate would never be able to contest any
election as disclosure of information about additional wife would attract
ground under Section 100 of the Act. In my view therefore mere addition
of column in Form 26 Affidavit would not attract a ground for challenging
the election. Thus, no ground under Section 100(1)(d)(i) or (iv) is made out
in the pleadings raised in the election petition, warranting its dismissal
under order VII Rule 11 of the Code.
33) Also of relevance is the position that mere demonstration of
violation of provisions of Constitution/Act/Rules is not sufficient and that
it is mandatory for the Petitioner to disclose concise statement of material
facts to demonstrate as to how election of the returned candidate has been
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materially affected by such violation. There is no pleading in the entire
Election Petition to demonstrate as to how election of Respondent is
materially affected on account of alleged violation of Rule 4A of the
Election Rules by him. In order to maintain a valid Election Petition, the
linkage must be established between the alleged violation and election
getting materially affected. Reliance by Mr. Gangal on judgment of Single
Judge of this Court in Dilip Bhausaheb Lande (supra) in this regard is
apposite in which necessity of establishing linkage between the illegality
and result of the election has been highlighted. This Court held in para-25
as under :-
25. Thus, to get an election declared as void under the said provision, the
election petitioner must aver that, on account of non-compliance with the
provisions of the Constitution or of this Act or of any rules, orders made
under the Act, the results of the election in so far as it concerns returned
candidate was materially affected. Here, it is petitioner’s case that
returned candidate has committed Corrupt Practices as well as
committed electoral offences and, therefore, returned candidate was
required to be declared as disqualified. Petitioner in Paragraph 28 of the
Petition averred that, unlawful campaign during prohibited 48 hours of
the election by Uddhav Thakarey and others resulted in unlawful election
process, which resulted in, election of the returned candidate by thin
margin of 409 votes. In paragraph 29, 30, 31 and 32, petitioner pleaded
that illegal election campaign by the senior leader of Shivsena, has
influenced voters to vote for returned candidate. Therefore, it is
petitioner’s case that the alleged violation of the orders/model code of
conduct, resulted in election of respondent no. 1 by margin of 409 votes.
Section 100(1)(d)(iv) requires pleadings as to how alleged illegal
campaign caused voters to vote in favour of the returned candidate. Thus,
pleading of this material fact of link between illegal election campaigning
and victory of returned candidate by margin of 409 votes was essential
‘fact’. Thus, to say that unless such link is pleaded, it was not possible to
frame the triable issue. Factually speaking, averment in paragraphs 28, 29,
30 and 31 of the Petition, are simply expressing “possible view of the
petitioner; without pleading link. Therefore, in absence of link between
alleged violation of model code of conduct and victory of returned
candidate, how the petitioner, could assert that, because of alleged
violation of ‘Model Code of Conduct, four hundred and nine voters,
caste their votes to returned candidate. In fact, petitioner has simply
reproduced, text of Section 1000(1)(d)(iv) of the Act and nothing more.
Averments in paragraph no. 28 and onwards, simply suggest that the
petitioner just undertook and launched roving and fishing enquiry
without concrete material with them. Additionally mere ‘chance’ or
‘likelihood’ of voters being influenced by illegal campaigning would not
constitute essential fact, to contend that illegal campaigning materially
affected the election result of the returned candidate. ….
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34) In Karikho Kri (supra), the Apex Court has held that a defect
in the nomination which is substantial in character is not sufficient for
maintaining a valid Election Petition. The Apex Court held in pars-40, 41,
44 and 45 as under :-
40. Having considered the issue, we are of the firm view that every defect
in the nomination cannot straightaway be termed to be of such character
as to render its acceptance improper and each case would have to turn on
its own individual facts, insofar as that aspect is concerned. The case law
on the subject also manifests that this Court has always drawn a
distinction between non-disclosure of substantial issues as opposed to
insubstantial issues, which may not impact one’s candidature or the result
of an election. The very fact that Section 36(4) of the Act of 1951 speaks
of the Returning Officer not rejecting a nomination unless he is of the
opinion that the defect is of a substantial nature demonstrates that this
distinction must always be kept in mind and there is no absolute mandate
that every non-disclosure, irrespective of its gravity and impact, would
automatically amount to a defect of substantial nature, thereby materially
affecting the result of the election or amounting to ‘undue influence’ so as
to qualify as a corrupt practice.
41. The decision of this Court in Kisan Shankar Kathore (supra), also
demonstrates this principle, as this Court undertook examination of
several individual defects in the nomination of the returned candidate
and found that some of them were actually insubstantial in character.
This Court noted that two facets required consideration – Whether there
is substantial compliance in disclosing requisite information in the
affidavits filed along with the nomination and whether non-disclosure of
information on identified aspects materially affected the result of the
election. This Court observed, on facts, that non-disclosure of the
electricity dues in that case was not a serious lapse, despite the fact that
there were dues outstanding, as there was a bonafide dispute about the
same. Similar was the observation in relation to non-disclosure of
municipal dues, where there was a genuine dispute as to re-valuation and
re-assessment for the purpose of tax assessment. Earlier, in Sambhu
Prasad Sharma v. Charandas Mahant19, this Court observed that the form
of the nomination paper is not considered sacrosanct and what is to be
seen is whether there is substantial compliance with the requirement as to
form and every departure from the prescribed format cannot, therefore,
be made a ground for the rejection of the nomination paper.
44. Though it has been strenuously contended before us that the voter’s
‘right to know’ is absolute and a candidate contesting the election must be
forthright about all his particulars, we are not inclined to accept the
blanket proposition that a candidate is required to lay his life out
threadbare for examination by the electorate. His ‘right to privacy’ would
still survive as regards matters which are of no concern to the voter or are
irrelevant to his candidature for public office. In that respect, non-
disclosure of each and every asset owned by a candidate would not
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amount to a defect, much less, a defect of a substantial character. It is not
necessary that a candidate declare every item of movable property that he
or his dependent family members owns, such as, clothing, shoes,
crockery, stationery and furniture, etc., unless the same is of such value as
to constitute a sizeable asset in itself or reflect upon his candidature, in
terms of his lifestyle, and require to be disclosed. Every case would have
to turn on its own peculiarities and there can be no hard and fast or
straitjacketed rule as to when the non-disclosure of a particular movable
asset by a candidate would amount to a defect of a substantial character.
For example, a candidate and his family who own several high-priced
watches, which would aggregate to a huge figure in terms of monetary
value, would obviously have to disclose the same as they constitute an
asset of high value and also reflect upon his lavish lifestyle. Suppression
of the same would constitute ‘undue influence’ upon the voter as that
relevant information about the candidate is being kept away from the
voter. However, if a candidate and his family members each own a simple
watch, which is not highly priced, suppression of the value of such
watches may not amount to a defect at all. Each case would, therefore,
have to be judged on its own facts.
45. So far as the ground under Section 100(1)(d)(iv) of the Act of 1951 is
concerned, the provision requires that the established non-compliance
with the provisions of the Constitution or the Act of 1951 or any rules or
orders made thereunder necessarily has to be shown to have materially
affected the result of the election insofar as it concerns the returned
candidate. Significantly, the High Court linked all the non-disclosures
attributed to Karikho Kri to Section 100(1)(d)(i) of the Act of 1951 but
ultimately concluded that his election stood invalidated under Section
100(1)(d)(iv) thereof. Surprisingly, there is no discussion whatsoever on
what were the violations which qualified as non-compliance with the
provisions of either the Constitution or the Act of 1951 or the rules and
orders framed thereunder, for the purposes of Section 100(1)(d)(iv), and
as to how the same materially affected the result of the election.
35) On the issue of failure to raise averment of election getting
materially affected, the reliance is placed on judgment of Single Judge of
this Court in Santosh Versus. Nitin Jairam Gadkari (supra) in which this
Court held in paras-56 and 57 as under:-
56. In Ram Sukh v. Dinesh Aggarwal16, the Supreme Court observed that
the requirement in an election petition as to the statement of material
facts and the consequences of lack of such disclosure with reference to
Sections 81, 83 and 86 of the Act came up for consideration before a
three-Judge Bench of this Court in Samant N. Balkrishna v. George
Fernandez17. Speaking for the three-Judge Bench, M. Hidayatullah, C.J,
inter alia, laid down that: ( i) Section 83 of the Act is mandatory and
requires first a concise statement of material facts and then the fullest
possible particulars; (ii) omission of even a single material fact leads to an______________________________________________________________________________
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A/w. EP-3-2025incomplete cause of action and statement of claim becomes bad; ( iii) the
function of particulars is to present in full a picture of the cause of action
and to make the opposite party understand the case he will have to meet;
(iv) material facts and particulars are distinct matters — material facts
will mention statements of fact and particulars will set out the names of
persons with date, time and place; and (v) in stating the material facts it
will not do merely to quote the words of the section because then the
efficacy of the material facts will be lost.
57. Thus, by these catena of decisions, it is reiterated that it was necessary
for the election petitioner to aver specifically in what manner the result of
the election insofar as it concerned the returned candidate is affected. The
pleading is vague and does not spell out as to how the election results
were materially affected because of these two factors. These facts fall
short of being “material facts” as contemplated in Section 83(1)( a) of the
Act to constitute a complete cause of action in relation to allegation
under Section 100(1)(d)(iv) of the Act.
36) Thus, there are no averments in the petition that the Form 26
Affidavit submitted by Respondent is in violation of Election Rules. I am
also unable to notice averments in the Petition containing a concise
statement showing as to how the election of the candidate has been
materially affected due to disclosure of name of second spouse by the
Respondent.
37) Turning to the allegation of corrupt practice for making out a
ground under Section 100(1)(d)(ii) read with Section 123(4) of the Act of
1951, it is seen that the Petitioner had made following averments in the
petition:
7. The Petitioner states that the Respondent has failed to submit the
proper and correct information as prescribed in Form 26 under Rule 4A
of the said Rules and, as stated in the preceding paragraph, on his own
added one more column “Spouse 2” so also on his own altered word
“Spouse” with “Spouse 1”, which is not as per the Original Form 26 under
Rule 4A of the said Rules and, therefore, filed improper, faulty and
defective Form and Affidavit and, thus, action on the part of the
Returning Officer, 130-Palghar (ST) Assembly Constituency in accepting
the said Form and Affidavit and in turn incomplete Nomination Form of
the Respondent is illegal and against the provisions of law. The Petitioner
states that the said Returning Officer also not considered a fact that the
Respondent has modified the original Form 26 on his own in respect of
“Spouse”. The Petitioner states that the intention of the legislation in
respect thereof is very clear and unambiguous and purport of the said
word “Spouse” means legally wedded wife or husband of the candidate
and not wives and husbands of the candidate. The Petitioner states that______________________________________________________________________________
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A/w. EP-3-2025the Respondent has provided information which is not as per the Form
prescribed under the Rule 4A of the said Rules in respect of information
of “Spouse” and, therefore, publication by the Respondent, the statement
of fact by way of abovesaid Affidavit in Form 26 dated 28.10.2024, is
false and in relation to the conduct of the Respondent and, thus, amounts
to corrupt practices on the part of the Respondent as contemplated under
Sections 123(4) of the Representation of the People Act, 1951.
38) According to the Petitioner, disclosure of Smt. Rupali Gavit
as his spouse by the Respondent is a false statement, which attracts corrupt
practice within the meaning of Section 123(4) of the Act. It would be
necessary to reproduce provisions of sub-section (4) of Section 123 which
reads thus:-
123. Corrupt practices.-
(1) …..
(2) ….
(3) ….
(4) The publication by a candidate or his agent or by any other person
[with the consent of a candidate or his election agent], of any statement
of fact which is false, and which he either believes to be false or does not
believe to be true, in relation to the personal character or conduct of any
candidate or in relation to the candidature, or withdrawal of any
candidate, being, a statement reasonably calculated to prejudice the
prospect of that candidate’s election
39) The essential requirement for attracting a corrupt practice
within the meaning of Section 123(4) of the Act is making of a statement
which is not only false but the candidate must also believe it to be false or
must not believe the same to be true. Such statement must relate to
personal character or conduct of another candidate or in relation to the
candidature or withdrawal of any candidate and is circulated to prejudice
the prospects of that candidate’s election. Thus, for attracting the
provisions of Section 123(4) of the Act, what must be pleaded is that the
candidate has published any statement relating to personal character or
conduct of another candidate for prejudicing the prospects of that
candidate’s election and such statement is false. The memo of Election
Petition does not contain any averment of Respondent publishing any______________________________________________________________________________
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which is found to be false. The falsity alleged by the Petitioner is in relation
to the statement made by him about himself, particularly about his
relationship that Smt. Rupali Gavit as his spouse. It is difficult to believe
that statement made by the Petitioner about his relationship with Smt.
Rupali Gavit, even if found to be false, would have attracted the provisions
of Section 123(4) of the Act.
40) Even if it is assumed momentarily that making of false
statement with regard to Respondent’s relationship with Smt. Rupali Gavit
as spouse would attract provisions of sub-section (4) of Section 123, I find
that there is no averment in the entire memo of the Election Petition that
the marriage between Petitioner and Smt. Rupali Gavit has never taken
place. Respondent has disclosed that Smt. Rupali Gavit is his second wife
in the Affidavit. By relying on provisions of the Hindu Marriage Act, 1955
the Petitioner has drawn an inference that the marriage between
Respondent and Smt. Rupali Gavit would be void. Thus, it is not a case of
the Petitioner that Respondent has never married Smt. Rupali Gavit. On
the contrary, he has specifically pleaded in para-10(d) of the petition that :-
The Petitioner submits that in the present case the Respondent has
already married and abovenamed “Rupali Gavit” is second wife of the
Respondent.
41) Thus, the Petitioner has infact admitted the factum of
marriage between Respondent and Smt. Rupali Gavit and in that sense, the
Petitioner has contradicted himself while accusing Respondent of
falsehood by claiming relationship with Smt. Rupali Gavit as his spouse. In
my view, therefore there is no material averment in the memo of Election
Petition to demonstrate falsity in the declaration made by the Respondent
in the Affidavit about his relationship with Smt. Rupali Gavit. The
contention raised by the Petitioner about impermissibility to contract______________________________________________________________________________
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and does not constitute making of false statement by the returned
candidate in the nomination form for attracting provisions of Section
123(4) of the Act.
42) I am not impressed by the submission of Ms. Karnik that
prohibition under the provisions of the Hindu Marriage Act, 1955 on
contracting second marriage would automatically render disclosure of
relationship by Respondent and Smt. Rupali Gavit to be false. In order to
make out a ground of making false statement in the nomination form, it
was necessary for the Petitioner to aver in the petition that marriage
between Respondent and Smt. Rupali Gavit has never occurred. Far from
making such averment in the petition, the Petitioner infact admits the fact
in para-10(d) of the Election Petition that Smt. Rupali Gavit is the second
wife of the Respondent.
43) Petitioner has also pleaded in para-8 of the Election Petition
that the declaration of second wife-Smt. Rupali Gavit is deliberately made
by the Respondent in the Affidavit with a view to exert undue influence
over the voters by securing vote of the local tribals as Smt. Rupali Gavit
belongs to local Tribal community. The relevant pleadings in para-8 of the
Election Petition are as under:-
8. The Petitioner states that as stated in the preceding paragraphs Nos. 6
and 7, the Respondent altered and modified the abovesaid Form 26 and
put name of his second wife “Rupali Gavit” on his own intentionally and
deliberately and for getting undue influence as the said second wife of the
Respondent “Rupali Gavit” is from Local Tribal and the Respondent
hailing from Nandurbar and, therefore, in order to exert undue influence
over the voters and to get votes of the said Local Tribal on account of his
second wife belongs to Local Tribal and, thus, has committed corrupt
practice as contemplated under Section 123(2) of the said Act.
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44) Ms. Karnik has accordingly submitted that provisions of sub-
section (2) of Section 123 are also attracted in the present case, under
which undue influence becomes a corrupt practice for setting aside election
under Section 100(1)(b) of the Act. It must be observed at the very outset
that there is no specific pleading by the Petitioner that any of the actions of
the Respondent constitutes corrupt practice within the meaning of Section
123(2) of the Act. However, even if some leeway is to be granted to the
Petitioner by ignoring the aspect of failure to quote Section 123(2) of the
Act, I am of the view that the pleadings raised in the petition would not
constitute concise statement of material particulars within the meaning of
Section 83 of the Act. Under Clause (b) of Section 83(1) of the Act, it is
necessary to plead full particulars of the corrupt practice that the Petitioner
alleges including the details of persons committing corrupt practice and
date and place of commission of each of such corrupt practice. As against
the requirement of pleading full particulars under Clauses (a) and (b) of
Section 83(1) of the Act, the Petitioner has merely made a suggestion that
disclosure of name of second wife-Smt. Rupali Gavit was intentional and
deliberately aimed at exerting undue influence over the voters. There is no
pleading in the entire petition that disclosure of name of Smt. Rupali Gavit
as Spouse No.2 had any direct or indirect interference on free exercise of
the electoral right. This is the third occasion on which the Respondent has
accordingly been elected from the same Constituency. In the light of this
position, it was all the more necessary for the Petitioner to give full
particular of the alleged influence on voters on account of disclosure of
name of Smt. Rupali Gavit in the declaration affidavit. The Petitioner has
not pleaded that the Respondent had not disclosed the name of Smt.
Rupali Gavit while filing Affidavits during previous elections and that he
made such a declaration for the first time in the Affidavit in Form 26 with
the sole intention of influencing the tribal voters. In my view, therefore
there are no pleadings in the Election Petition for establishing the ground
under Section 100(1)(b) of the Act.
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45) Ms. Karnik has relied on several judgements for seeking
dismissal of the application preferred by the Respondent. It would be
necessary to deal with the judgments relied upon by her:
(I) The judgment of the Apex Court in Liverpool & London S.P. & I
Association Ltd. (supra) is relied on in support of her contention
that the plaint needs to be read in entirety and the Court cannot
dissect the pleadings into parts for considering whether each one
of them discloses a cause of action. There can be no dispute
about the above proposition of law. However, as held above, the
Election Petition is not a common law remedy like a suit or a
remedy in equity. It is well established position that election
petition is a statutory remedy and that therefore strict compliance
with the provisions of the Act is mandatory requirement for
exercising statutory remedy under the Act. I have considered the
pleadings in the memo of Election Petition as a whole and I am
unable to trace a concise statement of material particulars as
required under Section 83(1)(a) or full particulars of corrupt
practice as required under Section 83(1)(b) of the Act for making
out the grounds under Section 100(1)(b), 100(1)(d)(i), (d)(ii) and
(d)(iv) and Section 123 of the Act. The judgment therefore does
not assist the case of the Election Petitioner.
(II) The judgment of the Apex Court in Sardar Harcharan Singh Brar
(supra) is relied on in support of contention that if pleadings can
sustain an action, the Court must allow the Election Petition to
be taken to trial. Again, there cannot be any dispute about the
said proposition. I have already discussed various pleadings
raised by the Petitioner in the memo of Election Petition and I
am of the view that the said pleadings do not formulate a______________________________________________________________________________
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A/w. EP-3-2025complete cause of action. Therefore, reliance by Ms. Karnik on
the judgment of the Apex Court in Sardar Harcharan Singh Brar
does not assist the case of the Petitioner.
(III) The judgment of the Apex Court in Virender Nath Gautam
(supra) is relied on in support of the proposition that there is a
difference between ‘material facts’ and ‘material particulars’. It is
contended that material facts have been pleaded by the Petitioner
in support of his claim and the same is sufficient to maintain the
present petition and to take the same to trial. However, on a
detailed analysis of the averments in the memo of Election
Petition as a whole, I am of the view that the pleadings therein
do not constitute complete cause of action for seeking
cancellation of election of the Respondent under Section 100(1)
(b), 100(1)(d)(i) or 100(1)(d)(iv) of the Act.
(IV) The judgment of the Apex Court in Ashraf Kokkur (supra) is
again relied upon to demonstrate the difference between ‘material
facts’ and ‘material particulars’ and it is contended that what is
required under Section 83(1)(a) of the Act is only a concise
statement of material facts and not material particulars.
However, the said principle applies only if the Election Petition is
filed on grounds other than corrupt practices. In the present case,
the ground of corrupt practice is also raised which would attract
the provisions of Section 100(1)(b) of the Act. Even qua the
grounds of Section 100(1)(i) and (iv), there is no concise
statement of material facts in the memo of petition demonstrating
as to how the claim of Respondent about his marriage with Smt.
Rupali Gavit is false thereby constituting the ground of improper
acceptance of nomination or violation of provisions of the
Election Rules. As observed above, since Election Petitioner
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himself admits existence of the second marriage, there is neither
any false claim nor honest disclosure of information about the
second marriage by adding a column in the Form 26 Affidavit
which would constitute defect in the nomination form or
violation of Rule 4A of the Election Rules.
(V) The judgment of the Apex Court in Kisan Shankar Kathore
(supra) lays down the ratio that when the case involves non-
disclosure or where the Affidavit is false or does not contain
complete information leading to suppression, the nomination can
be held to be improperly accepted. However, in the present case
there is no pleading to demonstrate that the Respondent either
made any false statement or suppressed any fact in the Affidavit
filed alongwith the nomination. Therefore, the pleadings do not
make out a case of improper acceptance of nomination order.
(VI) In Madiraju Venkata Ramana Raju (supra), the Apex Court has
ruled that once improper acceptance of nomination is
established, mere absence of averment in the Election Petition
about election of the returned candidate being materially affected
becomes irrelevant. It has held that candidate whose nomination
is non-acceptable, but is elected, the said fact by itself materially
affects the election result. The judgment is cited in order to
escape the consequences of failure to demonstrate election being
materially affected through pleadings in the Election Petition. In
the present case, the election is also challenged on the ground
enumerated in Section 100(1)(d)(iv) of the Act for which
pleading demonstrating election being materially affected is sine
qua non. Therefore, even though absence of pleading of election
being materially affected may be irrelevant for the ground under
Section 100(1)(d)(i) of the Act, the same would be mandatory for
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establishing the ground under Section 100(1)(d)(iv). As observed
above, there is absence of concise statement of material facts
establishing improper acceptance of nomination of the
Respondent. Therefore, the judgment in Madiraju Venkata
Ramana Raju does not assist the case of the Petitioner.
(VII) The judgment in Union of India Versus. Association for Democratic
Reforms (supra) has also been relied upon by Mr. Gangal and has
been discussed in preceding paragraphs. The judgment highlights
the importance of disclosure of all material information to the
voters. The judgment, far from assisting the case of the
Petitioner, actually militates against him, as the Petitioner is
questioning disclosure of information relating to second spouse
of the Respondent in Form 26 Affidavit, which objection actually
goes against the spirit of the judgment in Association for
Democratic Reforms.
(VIII) Ms. Karnik has also relied upon judgment of the Apex Court in
People’s Union for Civil Liberties (supra) which is also relied upon
by Mr. Gangal. The ratio of the judgment has already been
discussed in the preceding paragraphs and the judgment again
highlights the importance of disclosure of all necessary
information by the candidates and the Apex Court has held
Section 33B limiting the information to the one provided for in
the Act and Rules, to be illegal, null and void. In fact, the
objections raised by the Petitioner about Respondent disclosing
information about his second marriage with Smt. Rupali Gavit is
against the spirit of ratio of the judgment in People’s Union for
Civil Liberties. This judgment again does not assist the Petitioner
and actually militates against him.
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(IX) The judgment in Bhim Rao Baswanth Rao Patil (supra) again
highlights the importance of voters’ right to know about full
background of the candidate. This judgment again militates
against the Petitioner as he is objecting to the Respondent
disclosing information relating to Spouse No.2 as contrary to the
format of Form 26 provided for in Rule 4A of the Election Rules.
(X) Reliance by the Petitioner on judgment of the Apex Court in S. P.
Chengalvaraya Naidu (supra) is inapposite in view of the fact that
no allegation of fraud is made out in the pleadings raised in the
Election Petition.
(XI) The judgment in Mairemban Prithviraj alias Prithviraj Singh
(supra) again highlights the importance of right of the voters to
know about educational qualifications of the candidates
contesting the election and the judgment goes against the
objection of the Petitioner about Respondent disclosing his
second marriage with Smt. Rupali Gavit.
(XII) The judgment in Arjun Panditrao Khotkar (supra) reiterates the
ratio of the judgment in Madiraju Venkata Ramana Raju that once
the acceptance of nomination is found to be improper, pleading
and proof of the result of election being materially affected gets
dispensed with. In the instant case, the pleadings do not establish
improper acceptance of nomination of the Respondent and
therefore the question of dispensation with the requirement of
pleading and proof about election of the Respondent being
materially affected does not arise. Also, the election is challenged
on the ground under Section 100(1)(d)(iv) of the Act which
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undoubtedly requires pleading and proof of result of the election
being materially affected.
(XIII) Lastly, Ms. Karnik has relied on judgment in Karikho Kri (supra)
which is also relied upon by Mr. Gangal and ratio thereof has
been discussed in the previous paragraphs. The judgment in my
view actually assists the case of Respondent in which it is held
that every non-disclosure does not attract the ground for setting
aside election of the returned candidate. It is held that non-
disclosure of each and every asset of a candidate would not
amount to a defect much less the defect of substantial character.
The judgment in fact reiterates the position that for attracting the
ground under Section 100(1)(b)(iv) of the Act, the Election
Petitioner has to show that the result of the election was
materially affected on account of violation of provisions of
Constitution/Act/Rules/Orders. This judgment again, far from
assisting the case of the Petitioner goes against his case.
46) After considering the overall conspectus of the case, I am of
the view that the Election Petition lacks concise statement of material facts
as required under Section 83(1)(a) of the Act for establishing grounds
under Section 100(1)(d)(i) and 100(1)(d)(iv) of the Act. So far as the
ground of corrupt practice under Section 100(1)(b) read with Section
123(2) and (4) of the Act is concerned, the memo of Election Petition does
not set forth full particulars of corrupt practice. There are no pleadings to
establish that any statement made by the Respondent in his Affidavit in
Form 26 is false. There are no pleadings to establish undue influence on
voters with their free exercise of electoral right on account of Respondent
disclosing his second marriage with Smt. Rupali Gavit. On the contrary,
Respondent has candidly and honestly disclosed information relating to his
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second marriage with Smt. Rupali Gavit. In my view, therefore Petitioner
has failed to disclose real cause of action for challenging the election of the
Respondent by making out either of the grounds under Section 100(1)(b) or
100(1)(d)(i) or 100(1)(d)(iv) of the Act. As held by the Apex Court in
Kanimozhi Karunanidhi and Karim Uddin Barbhuiya (supra) even a singular
omission of a statutory requirement must entail dismissal of the Election
Petition by having recourse to the provisions of Order VII Rule 11 of the
Code. In my view therefore, the Election Petition is liable to be rejected by
taking recourse to the provisions of Order VII Rule 11 of the Code.
47) I accordingly proceed to pass the following order:
a) Application (L) No.5808/2025 filed by the Respondent is
allowed and the Election Petition is accordingly rejected
under the provisions of Order VII Rule 11 of the Code.
b) Election Petition No.3/2025 shall accordingly stand
dismissed.
Digitally
signed by
NEETA
NEETA SHAILESH [SANDEEP V. MARNE, J.]
SHAILESH SAWANT
SAWANT Date:
2025.06.23
20:15:02
+0530______________________________________________________________________________
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