Doesn’t Disclose Cause Of Action: Bombay HC Dismisses Plea Challenging Election Of Shiv Sena (UBT) Leader Anil Desai

The Bombay High Court has dismissed the petition challenging the election of Shiv Sena (UBT) Leader Anil Yeshwant Desai to Lok Sabha.

The Court was dealing with an application filed by Desai under Order VII Rule 11(a) of The Code of Civil Procedure, 1908 (CPC) read with Sections 81 and 82 of the Representation of the People Act, 1951 (RP Act), seeking dismissal of the election petition for non-disclosure of cause of action.

A Single Bench of Justice Sharmila U. Deshmukh said, “Considering that in an election petition, pleadings have to be specific, precise and unambiguous as contemplated by Section 83 of the RP Act, if the election petition does not disclose a cause of action it is liable to be dismissed in limine. … Upon meaningful reading of the Petition, in my view, the Petition does not disclose cause of action under Section 100(1)(d) (i) and (iv) of RP Act to maintain the Election Petition and is also liable to be rejected for non-compliance of Section 81”

Senior Advocate Devdatt Kamat appeared for the applicant while Advocate Iraa Dube Patil appeared for the respondent. Mahendra T. Bhingardive appeared in-person (petitioner).

In this case, the election petition sought a declaration that the nomination papers of the returned candidate as well as other candidates who had contested the election be declared as invalid, null and void as being defective, incomplete and invalid nomination papers and for an order declaring the petitioner as elected candidate in the General Elections-2024 from the South Central Mumbai Parliamentary Constituency as per Sections 84 and 101 of the RP Act. It was alleged that there were few blank columns, signature was missing on the reverse of stamp paper, and wrong and incomplete information was given in the Affidavit.

It was further alleged that the Returning Officer instructed the petitioner to give his objections in writing and without giving any opportunity to furnish his written objections, accepted the incomplete nomination papers of the returned candidate. It was also alleged that though the returned candidate had filed 3 nomination papers, only single Affidavit was uploaded on the Election Commission of India’s (ECI) website by the Returning Officer.

The High Court in view of the above allegations made, observed, “Coming to the requirement of Section 81 of RP Act, Section 81 provides that the election petition may be presented on one or more of the grounds specified in Sub-Section (1) of Section 100 and Section 101 to the High Court within period of 45 days and Section 83 provides that the Petition shall contain a concise statement of material facts on which the Petitioner relies. Section 83 when read conjointly with Section 81 of RP Act, the position that emerges is that the Election Petition should contain the facts which are material to demonstrate the cause of action on grounds specified under Sub-Section (1) of Section 100 of RP Act.”

The Court added that the petition in this case not pleading material facts, constitutes non-compliance of Section 81 of RP Act entailing consequence of dismissal under Section 86 of RP Act.

“Further, the Petitioner has not sought any relief that the election of returned candidate be declared as void and the only relief sought is an order declaring as null and void the nomination papers of the returned candidate and other contesting candidates. The provisions of Section 81 of the RP Act provides that the election can be called into question within a period of 45 days from the date of election of the returned candidate. As in the present case there is no relief seeking declaration of the election being void, after the expiry of period of 45 days, the Petition cannot be amended to seek the declaration”, it further remarked.

The Court noted that, without calling in question the election, the petition could not have been filed under Section 81 of RP Act.

“In the case of Jyoti Basu (supra) while dealing with an election petition, the Apex Court considered the provisions of RP Act and held that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation”, it also noted.

The Court reiterated that an election proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies.

“There thus has to be strict compliance with the requirements of the statutory provisions as outside the statutory provisions there is no right to dispute an election. The RP Act has been held to be a complete and self contained code within which must be found any right claimed in relation to an election or election dispute”, it said.

The Court, therefore, gave the following reasons for rejecting the election petition –

(a) There is no pleading of material facts in the Petition to demonstrate that by reason of alleged defects pleaded, the Returned Candidate’s nomination was liable to be rejected by the Returning Officer under Section 36(2) of RP Act so as to constitute cause of action under Section 100(1)(d)(i) and (iv) of RP Act.

(b) There is no averment in the Petition as to the manner in which by reason of improper acceptance of the nomination paper of the Returned Candidate, the result of the Election has been materially affected.

(c) The pleadings do not make out a case that the alleged defects in Affidavit Form 26 are of substantial character so as to be rejected by the Returning Officer under Section 36(3) of RP Act.

(d) Section 83 of RP Act requires the Election Petition to contain a concise statement of material facts. In absence of material facts being pleaded in the Petition, the provisions of Section 81 which provides for presentation of Election Petition on the grounds set out in Sub-Section (1) of Section 100 and Section 101 of RP Act, the Petition is non-compliant with Section 81 of RP Act entailing dismissal of the Petition under Section 86 of RP Act.

(e) There is no declaration sought that the election be declared void and in absence of any such declaration, it cannot be said that the Petition questions the Election and the Petition is non-compliant with Section 81 of RP Act.

Accordingly, the High Court dismissed the election petition and allowed the interim application.

Cause Title- Mahendra Tulshiram Bhingardive v. Anil Yeshwant Desai & Ors. (Neutral Citation: 2024:BHC-OS:1641)

Appearance:

Applicant: Senior Advocate Devdatt Kamat, Advocates Ankit Lohia, Rubin Vakil, Rishit Vimaldalal, Harsh Pandey, Manish Doshi, Heena T, Isha Thakur, and Gunjan Doiphode.

Respondents: Advocates Iraa Dube Patil, Advocates Abhijit P. Kulkarni, Gaurav Shahane, and Shreyas Zarkar.

Click here to read/download the Judgment