KULDEEP PENDEKAR Vs. AJIT PANDURANG GOGATE

JUDGEMENT

(1.) This Petition is filed for declaration that the election of the Respondent no. 1 as candidate from '04' Deogad Assembly constituency in the general election of the maharashtra Legislative Assembly held on 13th October, 2004 as Official candidate of the bhartiya Janata Party (hereinafter referred to as 'bjp') representing the alliance of Shi vsena bjp, be declared illegJl, null and void.

(2.) The notice in Form No. l declaring the Election programme was published on September 15, 2004. The date of filing nomination was from 15th September, 2004 till 22nd September. 2004. The scrutiny of nomination was to be undertaken on 23rd september, 2004 and the list of valid candidates after due scrutiny was to be published thereafter. Under the said notification, date of withdrawal of nomination was 25th September, 2004. On that date, besides the Petitioner, the six Respondents herein remained in the fray lor polling to be held on 13th October, 2004 between 7. 00 a. m. to 5. 00 p. m. The counting of votes in terms of notification was held on 16th October, 2004 when the Respondent No. l was declared as elected candidate from the said Constituency by the Returning Officer. The total votes polled as per the results declared by the Returning officer are stated to be 87,789. The Petitioner secured 41,312 votes; whereas, the Respondent no. 1 who was declared as Returned Candidate secured 42,384, elected by margin of 1072 votes. The other five candidates secured nominal votes ranging from 262 to 1,824.

(3.) The scheme of Section 86 (1) of the Act mandates that the election petition shall be dismissed by the Court, if it does not comply with the provisions of Section 81 or Section 82 or Section 117. In other words, Section 86 (1) obligates the Court to dismiss the election Petition on account of non-compliance of Section 81 of the Act. Subhere in abovesection (1) of Section 81 of the Act provides for filing of Election Petition within specified time. This provision is not invoked by the respondent No. l in the present case. Similarly, neither ground of non-compliance of Section 82 or Section 117 is pressed by the Respondent no. 1. That leaves us with the non-compliance of Section 81 (3) as the ground for dismissing the Petition under Section 86 of the Act. That provision provides that every "election petition" shall be accompanied by as many copies thereof as there are Respondents mentioned in the Petition and every such copy shall be attested by the Petitioner under his own signature to be a true copy of the Petition. Indeed, Section 86 (1) makes no reference to the situation that if the election petition is devoid of material facts, the same can be dismissed. However, by now, it is well established that if the Election Petition lacks material facts on which the Petitioner relies, the same ought to be dismissed in exercise of powers under Section 86 (1) of the Act read with provisions of Order VII, Rule 11 of the code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' ). That is so because section 81 refers to "an election petition". Section 83 provides for the contents of an election Petition. If the Petition does not conform to the requirements of Section 83, in particular, sub-section (l) (a) namely, lacks material facts, in that event, the Petition as filed cannot be allowed to proceed for want of cause of action; for it is not open to the election petitioner to improve upon that deficiency after the expiry of the period of limitation specified in sub-section (1) of Section 81 of the Act. In other words, even though Section 86 (1) makes no reference to Section 83 (1) (a) as such, even so, the Election Petition, if it fails to set forth "all the material facts" on which the Petitioner relies so as to disclose the cause of action, such petition will have to be thrown out at the threshold. That power is not only to be exercised with reference to Section 86 (1) of the Act, but also flows from provisions of order VII, Rule 11 of the Code of Civil procedure, 1908 (hereinafter referred to as "the code'), which obligates the Court to throw out the Petition at the threshold if the same does not disclose cause of action. There are catena of decisions of the Apex Court to fortify the above legal position. It will be useful to refer to the statement of law expounded in the decision of the Apex Court in Azhar Hussain vs. Rajiv Gandhi, 1986 AIR(SC) 1253 which restates the legal position that the election Petition ought to be dismissed at the threshold for non-compliance of provisions of section 83 for failure to incorporate in the petition all the material facts and particulars relating to alleged corrupt practices to disclose the Cause of action, by invoking powers under the Code: further, it is settled law that omission df a single material fact would lead to an incomplete cause of action relating to charge of corrupt practice and such election petition is not an election petition at all.