PRABHATSINH PRATAPSINH CHAUHAN Vs. SHANKARSINH LAXMANSINYH VAGHELA

JUDGEMENT

(1.) This is an application preferred under Order 7 Rule 11 of the de of Civil Procedure and under Sections 83 and 100 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act"). The respondent No.1 herein [hereinafter referred to as the "election petitioner" has filed Election Petition No. 2 of 2009 on 22.6.2009, inter-alia, challenging the election of the 15th Lok Sabha for 18 Panchmahals parliamentary constituency. The election took place on 30.4.2009 and the counting of votes had taken place on 16.5.2009. At the conclusion of counting of votes, on 16.5.2009 for 18 Panchmahals parliamentary constituency, the present applicant was declared as elected candidate. The election petitioner has challenged the said election on three grounds, namely:

(2.) Learned advocate has cited the following judgments in support of the submissions canvassed at the bar. They are as under :-

(3.) Learned advocate has placed reliance on the judgment rendered in the case of Ram Sukh Vs. Dinesh Aggarwal, reported in 2009-JT-12-352. The appeal before the Apex Court preferred under Section 116(a) of the Act has been directed against the judgment and order dated 15.1.2008 rendered by the High Court of Uttaranchal at Nainital in Writ Petition No. 3 of 2007. By the impugned order, the High Court upheld the preliminary objection raised by the first respondent and dismissed the election petition mainly on the ground that it did not comply with the mandatory requirement of furnishing the material facts so as to disclose the cause of action and was not supported by the affidavit in the prescribed form. The Apex Court after considering the provisions of Sections 117, 86, 83, 80, 100(1)(b), 100(1)(d) and 116(a) as well as the provisions of Order 6 Rule 16, Order 6 Rule 17 as well as Order 7 Rule 11 of the CPC held that from the perusal of the pleadings, it is vague and it does not spell out as to how the election results were materially affected. 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. It is not the case of the election petitioner that in absence of his election agent, there was some malpractice at the polling stations during the polling. It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to some omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition. Therefore, the Apex Court held that the Election Tribunal / High Court was justified in coming to the conclusion that the statement of material facts in the election petition was completely lacking and the petition was liable to be rejected at the threshold on that ground and thus, the view expressed by the High Court was upheld and the appeal was dismissed. The High Court took the said view because there was no averment in the election petition. In the case on hand, such is not the situation, and hence this decision is of no avail to the petitioner.