PATIL VAISHALI ASHOK Vs. DIGAMBARRAO YASHWANTRAO PATIL

JUDGEMENT

(1.) IN this petition, the petitioner who has lost election to the 1st respondent to the Legislative Assembly Election held on 26th April 2004, has called in question the election of 1st respondent on the ground that the 1st respondent had indulged in corrupt practice within the meaning of Section 123 (3) of the Representation of the People act, 1951 (hereinafter referred to as 'the RP act') by appealing to the voters on communal grounds and also on the basis of Marathi language.

(2.) IN IA. 3 of 2004 filed under Order VI, rule 16; Order 7 Rule 1 l (a) and Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code')read with Section 86 of the RP Act, the 1st respondent has prayed for striking down the pleadings at paragraphs 8 to 14 of the Petition; and in ia. I of 2605 filed under Section 86 (1) of the rp Act, he has prayed for dismissing the election Petition for want of cause of action.

(3.) THE facts in brief: the petitioner in this petition had contested general elections held on 26th Apri2 candidates who had contested the elections. While the 1st respondent digambarrao Yashwanth-rao Patil had contested the election as an independent candidate, respondent No. 2 Prahlad Kallappa remani contested on behalf of JD (U); respondent No. 3 Mallikarjun had contested on behalf of JD (S) and respondent No. 4 Rafique khatalsab Khanapur had contested on behalf of indian National Congress. In the election, while the petitioner has secured 18,747 votes, the 1st respondent had secured 19,115 votes and the other candidates secured lesser number of votes than the petitioner. The 1st respondent, who has secured highest number of votes amongst all the candidates was duly declared as a Member of the Karnataka Legislative Assembly by the Returning Officer on 13th May 2004. It is the case of the petitioner that the 1st respondent though had contested the election as an independent candidate, he was in fact sponsored and supported by the maharashtra Ekikarana Samithi. According to the petitioner, the Maharashtra ekikarana Samithi is an unregistered association and it is neither a recognized political party nor it is registered as a political party by the Election Commission of India. It is the grievance of the petitioner that the 1st respondent was able to get himself elected as Member of Karnataka Legislative assembly on account of his appeal to the voters made both on communal grounds and on the basis of Marathi language; and the corrupt practice committed by him falls within the meaning of Section 123 (3) of the rp Act and therefore, his election is liable to be set aside by this Court. Further, he had also prayed to declare that he was duly elected to fill the said seat. While the respondents 5 to 11 though served remained ex parte and did not file statement of objections, the 1st respondent has filed his objections and denied every one of the allegations made by the petitioner and prayed that the petition may be dismissed as one devoid of any merits. The 1st respondent had filed IA. I of 2004 seeking for rejection of the election petition. Since the said application was not signed by the advocate, the same was dismissed by me by means of order dated 29th October 2004. Subsequently, the 1st respondent has filed LA. 3 of 2004 seeking for striking of paragraphs 8 to 14 of the election petition. As noticed by me earlier, he has also filed LA. I of 2005 seeking for dismissal of election petition for want of cause of action. It is the case of the 1st respondent in IA. 3 of 2004 that averments made at paragraphs 8 to 14 of the election petition are liable to struck off on the ground that they are unnecessary, scandalous, frivolous and vexatious and that it tend to prejudice, embarrass and delay the fair trial of the election petition and do not disclose any cause of action. The said application was resisted by the petitioner by filing objections. In the objection statement, the petitioner has asserted that the averments made in the petition disclose necessary material particulars with regard to the appeal made by the 1st respondent to the voters both on the basis of Marathi language and on communal grounds and as such the election of the 1st respondent is required to be set aside as he has committed corrupt practice under Section 123 (3) of the RP Act.