RADHESHYAM DARSHEEMA Vs. KUNWAR VIJAY SHAH

JUDGEMENT

(1.) This order shall govern the disposal of I.A. No. 8710 of 2019 filed by Respondent No.1 Kunwar Vijay Shah on 16.07.2019 under Order 7 Rule 11 of CPC read with section 86(1) of "Representation of the People Act, 1951" (referred to as "Act 1951") for dismissal of the Election Petition No.14 of 2019 as not maintainable under section 86 of the Act, 1951 read with Order 7 Rule 11 of CPC.

(2.) Notification U/s 30 of R.P. Act,1951 was issued by Election Commission for Legislative Assembly election. Voting was held on 28.11.2018 and the result was declared on 11.12.2018. Respondent No.1 Kunwar Vijay Shah, Sponsored by the "Bhartiya Janta Party", is the returned candidate for Constituency No.176, Harsood, District Khandwa (Received 80556 votes). Petitioner Radheshyam, sponsored by "Gondwana Gantantra Party", who is the looser in that election (Received only 709 votes), filed main election petition under section 80 read with section 100 of the Act, 1951 on 25.01.2019.

(3.) As per petitioner, respondent no.1 organized a function of Bhagwat Katha during the period of 26.10.2018 to 01.11.2018 and also celebrated his birthday on 01.11.2018. The Election Code of Conduct was implemented from 14.10.2018 and during the existence of Election Code of Conduct, the aforesaid function was organized by the respondent no.1. Approximate expenditure has been mentioned by the petitioner in Para 11(1) to 11(18). The petitioner also wrote a letter Annexure P- 34 to transfer the officers, who were posted more than 5 years to 25 years. But as the respondent was holding the post of Minister, therefore, he misused his power therefore any employee was not transferred. The information regarding EVM machines was also sought by the petitioner vide Annexure A-35 but the aforesaid information was not given. The respondent no.1 organized the party meeting in the aforesaid Bhagwat Katha function. Therefore, the petitioner filed the petition for declaring :-