Bombay High Court: In an application filed under Order of the (‘CPC’) by Ravindra Dattaram Waikar, the winning candidate of Shiv Sena Party from Mumbai’s 27 North-West Constituency in the 2024 General Elections, seeking rejection of an Election Petition (‘EP’) filed byAmol Gajanan Kirtikar, from Shiv Sena (Uddhav Balasaheb Thackeray) Party for declaration of his election as void, a Single Judge Bench of Sandeep V. Marne, J.*, after analysing the EP, held that it failed to disclose any cause of action for making out any of the grounds under Section of the (‘RP Act’) and did not comply with Section of the . . Holding this, the Court allowed the application filed by Ravindra Dattaram Waikar and dismissed the EP.
Background
The elections for the aforesaid constituency were held on 20-05-2024 and the votes were counted on 04-06-2024. Subsequently, the results were declared wherein Ravindra Dattaram Waikar won by a margin of 48 votes compared to Amol Gajanan Kirtikar and thus, was declared a returned candidate. Thereafter, the EP was filed by Amol Kirtikar seeking a declaration of Ravindra Waikar’s election as void under Section of the and a declaration in favour of Amol Kirtikar’s election instead under Section read with Section of the . Aggrieved by the filing of such EP, Ravindra Waikar filed the present application.
Analysis
The Court reiterated that an EP was a statutory remedy and not an action in equity or a remedy in common law. The Court also stated that it was a well-settled position that the RP Act is a complete and self-contained code, thus, for exercising the statutory remedy provided under the Act, the strict compliance of its provisions is mandatory.
Regarding the topic of maintainability of an EP, the Court discussed several judgments such as Kanimozhi Karunanidhi v. A. Santhana Kumar and noted that for the maintainability, there must be strict compliance with Section of the , i.e., the concise statement of material facts must constitute a complete cause of action. The Court reiterated that failure of a petitioner to raise necessary pleadings to prove the ground under Section of the would result in dismissal of the EP under Order of .
Thereafter, the Court perused the facts and grounds pleaded by Amol Kirtikar in the EP, which are as follows:
The counting agents appointed by Amol Kirtikar were illegally not permitted to sit at the ARO/RO Table:
The Court noted that there were no pleadings as to which persons were appointed as counting agents and at which particular tables or computers they were not permitted to sit. Most importantly, there was no positive statement that the non-grant of such permission to the counting agents materially affected the election result. Thus, the Court held that the allegations were vague and did not disclose a cause of action to prove the ground under Section 100(1)(d)(iii) or (iv) of the RP Act.
Amol Kirtikar’s counting agents were not supplied Form 17-C (Part II) in respect of three out of six assembly segments:
The Court noted that this allegation was vague and did not lead to any logical conclusion demonstrating any specific ground under Section 100 of the RP Act. The Court noted that Amol Kirtikar had filed an application, one day before filing the EP, seeking inspection and certified copies of Form 17C (Part-II). The Court stated that this indicated that Amol Kirtikar believed that he might be able to make out a ground for questioning the election results after going through Form 17C (Part-II). The Court further noted that Amol Kirtikar had sufficient time to secure and collate the information to prove any specific ground under Section 100(1)(d) (iii) or (iv) of the RP Act but he did not do so. Thus, the Court rejected this ground, holding that Amol Kirtikar had sought a roving inquiry without any material pleading to demonstrate any specific ground for setting aside the election result.
Rejection of Amol Kirtikar’s application for recounting of votes:
The Court stated that as per law, the recounting application must be made during the time gap between the announcement made by the Returning Officer under Rule 63 and the declaration of the election result under Rule 64 of the Conduct of Election Rules, 1961. However, in the present case, not only was the application filed after the declaration of results but there was no positive statement explaining how the rejection of the recounting application had materially affected the result. Thus, the Court rejected this ground stating that it did not disclose any valid cause of action under Section 100(1)(d) (iii) or (iv) of the RP Act.
Unauthorized use of mobile phones in the counting centre:
The Court rejected this ground stating that the allegations were vague and there was no positive statement about how such use of mobile phones had materially affected the election result.
Improper reception of votes cast by impersonators which forced 333 genuine voters to cast tendered votes:
Under this ground, the Court highlighted that on the one hand, Amol Kirtikar suggested the irregularity of non-counting of the 120 missing tender votes, and on the other hand, he contended that all the 333 tendered votes are void and could not have been received. Thus, he was not sure as to whether the tendered votes ought to be counted or not. The Court noted that Amol Kirtikar had not demonstrated how the alleged violation of the right of 333 voters to cast a vote through tendered mode instead of through an Electronic Voting Machine (‘EVM’) affected his rights.
The Court further noted that Amol Kirtikar had filed an application, one day before filing the EP, seeking a supply of a copy of the List of Tendered Votes in all assembly segments for finding out the correct numbers. The Court stated that this showed that Amol Kirtikar himself was not aware of the exact numbers. Noting the aforesaid, the Court rejected the last ground as well.
Conclusion
After analysing every ground and several cases relied upon by Amol Kirtikar, the Court held that he had failed to make necessary pleadings disclosing the cause of action for setting aside Ravindra Waikar’s election under any of the grounds enumerated in Section 100 of the RP Act. The Court further held that the EP lacked a concise statement of material facts and was non-compliant with Section of the . Therefore, following the mandate laid down by the Supreme Court in various judgments that even a singular omission of a statutory requirement must entail the dismissal of the EP by having recourse to provisions of Order of , the Court dismissed the EP.
[Amol Gajanan Kirtikar v. Ravindra Dattaram Waikar, Application No. 29930 of 2024 in Election Petition No. 6 of 2024, decided on 19-12-2024]
*Judgment by Justice Sandeep V. Marne
Advocates who appeared in this case:
For the applicant: Senior Advocate Anil Y. Sakhare, Utsav Trivedi, Shyamsunder Jadhav, Kavita Dhanuka, Vishal Acharya, Rohan Mirpurey, Savita Suryavanshi, Bhavya Shah, and Chirag Shah
For the respondent: Advocates Pradeep M. Patil, Parvinchand B. Gole, Nimish S. Parakh, and Amit A. Karande
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