Bombay High Court
Dhanraj S/O Kothiramji Vanjari vs The Election Commission Of India ... on 20 August, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
ELECTION PETITION NO.3/2019
Dhnraj s/o Kothiramji Vanjari,
aged 63 years, retd. Govt. Servant,
r/o c/o Ramkrishna Sambhare,
New State Bank Colony, Luniya Layout,
Nagpur Road, Wardha. .....PETITIONER
...V E R S U S...
1. The Election Commission of India,
through its Chairman having o/a
Nirvachan Bhavan, Ashoka Bhavan,
New Delhi.
2. Returning Officer, having his
office at Collectorate, Wardha.
3. Ramadas s/o Chandrabhan Tadas,
r/o Main Road, Deoli, District
Wardha - 442 101. ...RESPONDENTS
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Mr. Nihalsingh Rathod, Advocate for petitioner.
Ms Neerja Choubey, Advocate for respondent no.1.
Mrs.K.R.Joshi, Incharge Government Pleader for respondent no.2.
Mr. F. T. Mirza, Advocate for respondent no.3.
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CORAM:- V. M. DESHPANDE J.
DATE:- AUGUST 20, 2021
JUDGMENT (Per: V. M. Deshpande, J.)
1. After elections for 17th Lok Sabha were held in April-
2019, various election petitions were filed in the High Court.
2. The preset election petition pertains to Lok Sabha
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election for Wardha Constituency. The petitioner was sponsored
by duly registered political party by name; 'Vanchit Bahujan
Aghadi.' In the said election, respondent no.3, who was
sponsored by Bhartiya Janata Party was declared as returned
candidate by the Returning Officer. According to the election
petitioner, he polled 36452 votes whereas respondent no.3 polled
5,78,364 votes. Paragraphs 5 and 6 of the petition, which are
relevant, read thus:
"5. In the loksabha constituency of Wardha
Loksabha 08, there were 17,41,700 registered voters.
Of which 10,71,190 polled their votes. Petitioner,
according to the respondent no.2 fared 36452 votes,
whereas the respondent no.3 sponsored by Bhartiya
Janata Party fared 5,78,464 votes. However, the final
tally of the votes does not match and there is serious
discrepancy in the grant total. From bare perusal of
the data as recorded in handwritten form in form 17
and that counted there is difference of 1380 votes.
6. In such circumstances, it was mandatory
for the respondent no.2 to match the tally between
the votes recorded in accordance with form 17C and
votes counted. Only after such tally matches without
any error, could the respondent no.2 have proceeded
further. However, without following the specific
orders of respondent no.1, respondent no.2 issued
certificate to the respondent no.3, leaving behind
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serious lacunae which makes the whole election
redundant and vitiated."
3. After notices were issued, respondent no.3 appeared
and filed an application under Order VII Rule 11 (a) of the Code
of Civil Procedure, 1908 read with Section 81 and 83 (1) (a) of
the Representation of People Act, 1951 for rejection of this
petition. The said application was Civil Application (CAO)
No.1842/2019 (Exh.-7). Copy of the said was furnished to the
counsel for the petitioner. Roznama of this election petition
would show that in spite of time granted, reply was not filed to
the application Exh.-7. On 16.07.2021, Mr. Rathod, learned
counsel for election petitioner submitted that he was having
instructions from the election petitioner that election petitioner
does not wish to file any reply to the application, Exh.-7 and
accordingly the said was noted in the order dated 16.07.2021 and
thereafter the matter was fixed for oral arguments.
4. When on 20.08.2021, the application was taken up for
hearing, it was pointed out to this Court, not only by the learned
counsel for respondent no.3 but also by learned counsel for the
election petitioner that Election Petition Nos.6/2019, 9/2019 and
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7/2019 are dismissed by different benches of this Court by
allowing applications filed on behalf of the returned candidate
under Order 7 Rule 11(a) of the Code of Civil Procedure and
Sections 81 and 83 (1) (a) of the Representation of People Act.
5. At the time of hearing of this application, Mr. Rathod,
learned counsel for the petitioner submitted that except the
number of votes as mentioned in paragraphs 5 and 6 of the
election petitions, which were filed by him only, all other
pleadings made in all election petitions are identical.
6. Mr. Rathod, learned counsel for the election petitioner
also submitted that none of the election petitioners whose election
petitions have been dismissed by various benches of this Court by
uphoding the objections raised by filing application under Order
VII Rule 11(a) of the Code of Civil Procedure, none approached
before the Hon'ble Apex Court. Mr. Rathod further submitted that
the allegations made in this petition since are identical with the
other petitions except the votes polled by the petitioner and the
returned candidates, he submitted that this election petition also
can be disposed of.
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7. From the submissions made by both the parties before
me, it appears that facts constituting cause of action as
contemplated by sub clause (a) of Order VII Rule 11(a) of the
Code of Civil Procedure are same. It is undisputed that all other
election petitions have been dismissed for non disclosure of cause
of action. Therefore, I found myself bound by the reasons,
dismissing those other election petitions.
8. In that view of the matter, there is no other option for
this Court but to allow application Exh.-7. Consequently, following
order is passed.
ORDER
(i) Civil Application (CAO) No.1842/2019,
under Order VII Rule 11(a) of the Code of Civil
Procedure read with Section 81 and 83 (1) (a) of the
Representation of People Act (Exh.-7) filed by the
returned candidate is hereby allowed.
(ii) In view of allowing of application Exh.-7,
Election Petition No.3/2019 stands dismissed.
JUDGE
kahale
