NANA FALGUNRAO PATOLE Vs. NITIN JAIRAM GADKARI

JUDGEMENT

(1.) The election of the respondent no.1-returned candidate has been challenged by the petitioners in the present election petition filed under Sec. 81 of the Representation of the People Act, 1951 (for short, 'the Act of 1951 '). The challenge is based on the provisions of Sec. 100(1)(b), Sec. 100(1)(d)(i), (ii) and (iv) read with Sec. 123(2) of the Act of 1951. The petitioners besides seeking a declaration that the election of the returned candidate is void have also claimed a further declaration that the petitioner no.1 be declared duly elected. The returned candidate on being served with the election petition has filed C.A.O. No.754 of 2020 (Exhibit 19) under the provisions of Order VI Rule 16 of the Code of Civil Procedure, 1908 (for short, 'the Code ') praying that the pleadings in paragraph 7 alongwith its sub-paragraphs as well as paragraphs 10 to 12 be struck off. The returned candidate has also filed C.A.O. No.11 of 2021 (Exhibit 20) under the provisions of Order VII Rule 11 of the Code read with Sec. 86 of the Act of 1951 seeking rejection of the election petition for want of cause of action. In addition, the returned candidate has also filed C.A.O. No.549 of 2021 (Exhibit 26) seeking permission to raise additional grounds in support of the application filed below Exhibit 20.

(2.) The petitioners have opposed the aforesaid applications. Reply to the application preferred under the provisions of Order VI Rule 16 of the Code has been filed at Exhibit 22. Reply to the application preferred under the provisions of Order VII Rule 11 of the Code has been filed at Exhibit 23 and an additional reply has also been filed at Exhibit 32. The learned counsel for the parties were heard on the applications as filed by the returned candidate under the provisions of Order VI Rule 16 and Order VII Rule 11 of the Code. One of the contentions urged on behalf of the returned candidate was that the affidavits filed by the petitioners under Form 25 read with Rule 94-A of the Conduct of Election Rules, 1961 (for short, 'the Rules of 1961 ') were improper for the reason that the statements made by the petitioners in paragraphs 1 to 21 alongwith Annexures I to IX of the election petition were stated to be true to the knowledge of both the petitioners and were stated also to be true to their information. After finding that any defect in verification or in the affidavits as filed is curable, by order dated 29/10/2021 the election petitioners were granted an opportunity to cure the defects in the affidavits filed under Form 25 within a period of fifteen days from the date of the order. The relevant directions in the order dated 29/10/2021 are as under:

(3.) In the affidavit filed by both the election petitioners in Form 25 dated 07.07.2019 it has been averred that the statements made in paragraphs 1 to 21 with Annexures I to IX as regards the commission of corrupt practice under Sec. 123(2) of the Act of 1951 as well as contents of all civil applications including the application for amendment of the election petition and the application for permission to file documents as well as other applications filed till 07.07.2019 were true to the knowledge of both the election petitioners. In the same affidavits it was further stated that this very matter that was true to the knowledge of the election petitioners was also true to their information. Pursuant to the order dated 29/10/2021 fresh affidavits under Form 25 have been filed at Exhibit 31 dated 06.11.2021 by both the election petitioners. In these affidavits it has been stated that the statements made in paragraph 1 to 21 ( 'here excluding 3 to 21 ') with Annexures I to IX ( 'here excluding ') were true to the knowledge of the election petitioners. The statements made in paragraphs 1 to 21 ( 'here excluding paragraphs 1 and 2 ') with Annexures I to IX as regards commission of corrupt practice under Sec. 123(2) of the Act of 1951 were true to the information. In other words, according to the election petitioners the statements made in paragraphs 1 and 2 of the election petition were true to their knowledge and the statements made in paragraphs 3 to 21 alongwith Annexures I to IX of the election petition about commission of corrupt practice were true to their information. This has been clarified in paragraph 3 of the said affidavits. The election petitioners have then stated that the defects in the existing affidavits were cured in the aforesaid manner. The effect of the affidavits now filed pursuant to the opportunity granted to the election petitioners for curing the defects would have to be taken into consideration.