PRITHVIRAJ SAYAJIRAO DESHMUKH Vs. PATANGRAO SHRIPATRAO KADAM

JUDGEMENT

(1.) APPLICATION No. 3 of 2000 has been taken out by the respondent No. 1, Chamber Summons No. 509 of 2000 and Application No. blank of 2002 have been taken out by the petitioner.

(2.) THE petitioner has filed this petition challenging the validity of the election of the respondent No. 1 as a member of Maharashtra Legislative Assembly from the Constituency bearing No. 270 Bhilwadi-Wangi Legislative Constituency. The voting in the said constituency took place on 5th September, 1999 and the results was declared on 6th October, 1999. The respondent No. 1 has been elected by about 1700 votes. In the petition, the petitioner challenges the validity of the election of the respondent No. 1 on the ground that the respondent No. 1 is guilty of corrupt practice within the meaning of the Representation of People Act, 1951. In the election petition, the petitioner had alleged that the respondent No. 1 has committed corrupt practice within the meaning of sub-section (1) of section 123, sub-section (2) of section 123 and sub-section (4) of section 123 of the Act. The learned Counsel appearing for the petitioner, however, has made a statement, at the bar, that the petitioner is restricting his petition to the ground that the respondent No. 1 has committed corrupt practice within the meaning of the section 123 (4) of the Act.

(3.) APPLICATION No. 3 of 2000 has been taken out by the respondent No. 1 for dismissal of the petition summarily for non compliance with the provisions of section 81 and section 83 of the Act as also under the provisions of Order 7, Rule 11 (a) of the Civil Procedure Code. By prayer Clause (e) of the application, the respondent No. 1 seeks an order for striking of the contents of certain paragraphs of the petition for non-compliance with the provisions of Order 6, Rule 16 of the Civil Procedure Code. According to the respondent No. 1, the affidavit which is required to accompany the election petition, which alleges corrupt practice against the returned candidate, is not in the prescribed form. In the present case, according to the respondent No. 1, the affidavit filed under section 83 is an integral part of the petition and as the affidavit filed with the petition does not amount to an affidavit required to be filed under section 83 of the Act, the election petition can not be termed as an election petition within the meaning of section 81 of the Act and therefore under the provisions of section 86 the petition is liable to be dismissed. In support of this proposition the learned Counsel appearing for the respondent No. 1 relies on the judgment of the Supreme Court in the case of (F. A. Sapa v. Singora and others), A. I. R. 1991 Supreme Court 1557. The next submission of the respondent No. 1 is that the election petition has incorporated various document by reference without reproducing its contents in the body of the election petition. The documents referred to in the election petition form an integral part of the petition. The copies of those documents have neither been produced before the Court nor have the copies been supplied to the respondent No. 1, and therefore, the petition is liable to be dismissed under the provisions of section 86 of the Act. In support of this submission, the respondent No. 1 relies on a judgment of the Supreme Court in the case of (Manohar Joshi v. Nitin Bhaurao Patil and another), A. I. R. 1996 Supreme Court 796, and the judgment of the Supreme Court in the case of (Mulayam Singh Yadav v. Dharampal Yadav and others), J. T. 2001 (5) S. C. 598. It is further urged on behalf of the respondent No. 1 that the petition is liable to be dismissed as it does not comply with the mandatory requirement of furnishing material facts and particulars, which is required to be done under the provisions of section 83 of the Act and that it does not disclose cause of action and therefore the petition is liable to be dismissed.