Bombay High Court Upholds Election Of Shiv Sena Candidate
The Bombay High Court has upheld the election of Rajendra Dhedya Gavit, a Shiv Sena candidate who contested election from Assembly Constituency (130-Palghar).
An Election Petition was filed before the Court, seeking a declaration that the election of Gavit in the General Election 2024 to the State Assembly is void.
A Single Bench of Justice Sandeep V. Marne observed, “As held by the Apex Court in Kanimozhi Karunanidhi and Karim Uddin Barbhuiya (supra) even a singular omission of a statutory requirement must entail dismissal of the Election Petition by having recourse to the provisions of Order VII Rule 11 of the Code. In my view therefore, the Election Petition is liable to be rejected by taking recourse to the provisions of Order VII Rule 11 of the Code.”
Senior Advocate Neeta Karnik appeared on behalf of the Petitioner while Advocate Nitin Gangal appeared on behalf of the Respondent.
Brief Facts
The Petitioner was a voter from 130-Palghar, ST Assembly Constituency who claimed himself to be a Social Activist. The Respondent had contested the election from Assembly Constituency (130-Palghar) as an official candidate of Shiv Sena, a registered political party. The results of the elections were declared in November last year, in which the Respondent was declared as the Elected Candidate. The Petitioner raised objections about declarations made by the Respondent in the Affidavit in Form-26 filed along with the nomination by the Respondent. It was contended that the Respondent stated name of Rupali Gavit as his second wife and according to the Petitioner, such disclosure by the Respondent is not only incorrect but also against the format of Form No. 26 prescribed under Rule 4A of the Conduct of Election Rules, 1961.
It was further contended that the second marriage of the Respondent is void under the provisions of the Hindu Marriage Act, 1955 (HMA), and therefore, the declaration made by the Respondent about his second wife is false. It was also contended that in the format of Form No. 26 under Rule 4A, there is no provision for making any declaration of second spouse and hence, addition of an extra column in respect of Spouse No. 2 is in violation of Rule 4A. Therefore, the Petitioner challenged the election of Respondent under the provisions of Section 100(1)(b), 100(1)(d)(i), and 100(1)(d)(iv) read with Section 123(4) of the Representation of People Act, 1951 (RP Act). Additionally, the Respondent filed an Application before the High Court, seeking rejection of the Election Petition under the provisions of Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC).
Reasoning
The High Court in view of the above facts, said, “I am not impressed by the submission of Ms. Karnik that prohibition under the provisions of the Hindu Marriage Act, 1955 on contracting second marriage would automatically render disclosure of relationship by Respondent and Smt. Rupali Gavit to be false. In order to make out a ground of making false statement in the nomination form, it was necessary for the Petitioner to aver in the petition that marriage between Respondent and Smt. Rupali Gavit has never occurred. Far from making such averment in the petition, the Petitioner infact admits the fact in para-10(d) of the Election Petition that Smt. Rupali Gavit is the second wife of the Respondent.”
The Court was of the view that the Election Petition lacks concise statement of material facts as required under Section 83(1)(a) of the Act for establishing grounds under Section 100(1)(d)(i) and 100(1)(d)(iv) of the RP Act.
“So far as the ground of corrupt practice under Section 100(1)(b) read with Section 123(2) and (4) of the Act is concerned, the memo of Election Petition does not set forth full particulars of corrupt practice. There are no pleadings to establish that any statement made by the Respondent in his Affidavit in Form 26 is false”, it added.
The Court further noted that there are no pleadings to establish undue influence on voters with their free exercise of electoral right on account of Respondent disclosing his second marriage with Rupali Gavit.
“On the contrary, Respondent has candidly and honestly disclosed information relating to his second marriage with Smt. Rupali Gavit. In my view, therefore Petitioner has failed to disclose real cause of action for challenging the election of the Respondent by making out either of the grounds under Section 100(1)(b) or 100(1)(d)(i) or 100(1)(d)(iv) of the Act”, it also observed.
Accordingly, the High Court dismissed the Election Petition of the Petitioner and allowed the Application of the Respondent.
Cause Title- Sudhir Brijendra Jain v. Rajendra Dhedya Gavit (Neutral Citation: 2025:BHC-OS:9251)
Appearance:
Petitioner: Advocates Nitin Gangal, Chandrakant Y. Tanawde, Namita Mestry, Prapti Karkera, Diksha Patil, Pramod B. Jedhe, Naresh B. Patil, and Milind Choudhari.
Respondent: Senior Advocate Neeta Karnik, Advocates Jimmy Mates Gonsalves, Shrirang P. Katneshwarkar, Kallies Albert Alphanso, Sandeep Gupta, and Anthony Floriyen Foss.
