In view of failure on part of the petitioner to aver the contention as to ‘material facts” and to aver the contention as to election of returned candidate was materially affected insofar as it is concerned, the election petitions are liable to be summarily dismissed without trial. 

 

JUSTICE Urmila Joshi-Phalke, at the Nagpur Bench of the Bombay High Court, has dismissed two Election Petitions filed by Advocate Santosh Tulshiram Chavhan and Suraj Baliram Mishra against the victory in General Elections last year, of the Union Minister Nitin Gadkari from the Nagpur Constituency to the Lok Sabha, on March 19, 2025. In quite meaningful observation, the HC has stated in its separate judgments that “seeing from any angle, it becomes clear that in absence of pleadings as to the “material facts” to the extent of that the election of Respondent-3/5, Nitin Jairam Gadkari was materially affected, it would have to be held that the election petitions are based on an incomplete cause of action.

 

The challenge to Gadkari’s election was on the ground that the Bhartiya Janta Party (BJP) and its workers have violated the Model Code of Conduct. It had been alleged that the respondent –Gadkari by using digital type machines circulated slips to the voters, having photographs, name of Gadkari and symbol of the BJP. It was further alleged that the machines were given to the representatives of all booths on Nagpur and the said slips were circulated to mislead voters and to get their valuable votes. Thus, Respondent-Gadkari and the BJP committed violation of Model Code of Conduct.

 

The petitioner-Chavhan had prayed for declaration that the the petitioner himself be declared as elected Member under section 83 of the Representation of the People Act, 1950. He had also further prayed for cancellation and recall of the certificate of returned candidate, Gadkari and also seeks declaration declaring the returned candidate elected as null and void. After service of notice, respondent-Gadkari appeared and filed an application under Order VII Rule 11 of the CPC with section 86 of the RP Act for rejection of election petition and also filed an application under Order VI Rule 16 of the CPC for rejection of the plaint on the ground that as the petitioner is seeking declaration that he be declared as elected, all the contesting candidates other than the petitioner are required to be joined as respondents to the election petition. It is settled position of law that the provisions of section 82 of the RP Act are mandatory in nature. Section 86(1) of the RP Act provides that an election petition which does not comply with the provisions of sections 81,82 are 117 of the RP Act is required to be dismissed as election petition cannot be maintained seeking declaration of the petitioner being successful candidate in the absence of all contesting candidates being impleaded as respondents.

 

It was further contended that the petitioner has not pleaded the “material facts” as to the election has been materially affected. The “material facts” as to the violation of the Code of Conduct are not pleaded .The petition did not disclose any cause of action and violation of the Model Code of Conduct as well. It did not disclose whether violation is by the returning candidate or his election agent or with their authorisation are concerned. The material facts, such as who distributed slips, at which place (specific place and time not mentioned).In absence of specific cause of action election petition deserve to be dismissed. The “material fact” that the election has been materially affected have not been pleaded. The allegations are against party in general and not against returning candidate respondent, Nitin Gadkari. Vague pleading as to the violation of the Model Code of Conduct by the BJP and its workers was not sufficient and rejection of the plaint was prayed. The Supreme Court has dealt with the issue of ”undue influence” in its decision –Bachan Singh v, Prithvi Singh – (1975) 1 SCC 368 and observed that, doubtless the definition of “undue influence” in section 123(2) is couched in very wide terms and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts to interfere with the free exercise of electoral right. In one sense, even election propaganda carried on vigorously, blaringly and systematically through charismal leaders or through various media in favour of a candidate by recounting the glory and achievements of that candidate and his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this clause. The proviso illustrates that ordinarily interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix “undue” indicates that there must be some abuse of influence. “Undue influence” is use in contradistinction to “proper influence”. Construed in the light of the proviso, clause (2) of section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgement of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed, such proper and peaceful persuasion is the “motive force of or democratic process.” In view of these observations and principles laid down by the Supreme Court, from the pleadings of the petitioner nowhere it reflects that there was any direct or indirect interference or attempt to interfere on the part of the returned candidate. Thus, in view of the law as laid down in the case – Ram Sukh v. Dinesh Aggarwal –(2009) 1 SCC 541 and in view of failure on part of the petitioner to aver the contention as to ‘material facts” and to aver the contention as to election of returned candidate was materially affected insofar as it is concerned, the election petitions are liable to be summarily dismissed without trial. No useful purpose would be served by permitting the election petitioners to proceed for trial in absence of any pleadings in the petitions that the election of the returned candidate requires to be declared void under section 100(1)(d) (iv)of the Act. In absence of such basic averments, it would be also not permissible for the election petitioner to lead any evidence in that regard. The Court has directed payment of litigation costs to be paid to the returned candidate by adopting the course prescribed by Section 121 of the Act.