Bombay High Court
Kailas Kisanrao Gorantyal vs Arjun Panditrao Khotkar And Others on 30 March, 2026
2026:BHC-AUG:13505
(1) EP-03-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION IN ELECTION PETITION NO. 158 OF 2025
(EXHIBIT-15)
IN
ELECTION PETITION NO. 03 OF 2025
Arjun Panditrao Khotkar
Age: 62 years, Occu: Social Service and Business,
Resident of: Darshana, Bhagyanagar,
Shanimandir Chowk to Ambad Road Flyover
Old Jalna, District Jalna. ...APPLICANT
(Orig. Respondent No.1)
IN THE MATTER BETWEEN
Kailas Kisanrao Gorantyal
Age: 59 years, Occu: Social Service and Business,
Resident of: House No.77,
Pritisudha Nagar, Mantha Road,
Jalna, District Jalna. ...PETITIONER
(Respondent in Appln.)
VERSUS
1] Arjun Panditrao Khotkar
Age: 62 years, Occu: Social Service and Business,
Resident of: Darshana, Bhagyanagar,
Shanimandir Chowk to Ambad Road Flyover
Old Jalna, District Jalna.
2] The Election Commission of India
Through Chief Election Commissioner
Nirvachan Sadan, Ashoka Road,
New Delhi.
(2) EP-03-2025
3] The Returning Officer,
Jalna Assembly Constituency (101),
@ The Sub-Divisional Officer,
Jalna, District Jalna,
Sub-Divisional Office, Old Jalna,
Jalna. ...RESPONDENTS
.....
Mr. S. B. Deshpande, Senior Advocate i/by Mr. Pratik A. Bhosle,
Advocates for the Applicant/Orig. Respondent No.1.
Mr. Mukul S. Kulkarni and Mr. Aditya N. Sikchi a/w. Mr. G. M.
Jakkalwar, Advocates for the Respondent/orig. Petitioner.
Mr. Alok Sharma, Advocate for the Respondent No. 2 and 3/Election
Commission.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 13th FEBRUARY 2026.
PRONOUNCED ON : 30th MARCH 2026.
J U D G M E N T :
–
1. Heard Mr. S. B. Deshpande, the learned Senior Advocate for
Applicant, Mr. Kulkarni, the learned Advocate for the Respondent/Orig.
petitioner, and Mr. Sharma, the learned Standing Counsel for the
Election Commission. The parties are referred to as per their original
status in Election Petition for the purpose of convenience.
(3) EP-03-2025
2. The present Application (Exhibit-15) is under Order VII Rule 11 of
the Code of Civil Procedure, 1908 ( hereinafter referred to as “Code of
1908”), at the instance of respondent No.1 in Election Petition No.03 of
2025, a returned candidate, seeking dismissal of the Election Petition.
3. The facts in short giving rise to filing of the Election Petition are as
under:
Election programme of the General Elections to the Legislative
Assembly for Constituency-101 Jalna declared for a term of 2024-2029
by the Election Commission was as under:-
SCHEDULE DATE
Date of issue of Gazette Notification 22.10.2024
Last date of filing nominations 29.10.2024
Date of Scrutiny of nominations 30.10.2024
Last Date for the withdrawal of candidatures 04.11.2024
Date of Polling 20.11.2024
Date of Counting 23.11.2024
Date of Result 23.11.2024
. In the said election, the petitioner Mr. Kailas Gorantyal was set up
as a candidate of Indian National Congress (INC). The respondent No.1
(4) EP-03-2025Mr. Arjun Khotkar was set up as a candidate by Shivsena (Eknath
Shinde). In the election, respondent No.1 came to be declared elected.
4. The petitioner on his defeat approached this Court challenging
election of the respondent mainly on the following grounds:
(i) the Respondent No.1 was holding an office of profit on
the date of his nomination and the election, as he was
the Chief Administrator of the Agriculture Produce
Market Committee Jalna (hereinafter referred to as
“APMC”);
(ii) the nomination Form of respondent No.1 is improperly
and wrongly accepted;
(iii) the election is materially affected as the election is
conducted in non-compliance of the provision of
Representation of Peoples Act, 1951 (hereinafter
referred to as “R.P. Act“) and Conduct of Election Rules,
1961 (hereinafter referred to as “Election Rules”).
5. It is stated that the the respondent no.1 made an application to
appoint himself as an Administrator on Jalna APMC by removing earlier
Administrator. The Chief Minister passed an order dated 22.05.2023
(5) EP-03-2025
removing the earlier Administrator and appointed Board of
Administrator for Jalna APMC. The respondent No.1 was appointed as
Chief Administrator of the Board of Administrators. The term of
Administrator is until further orders. The term of the body came to be
extended till 05-12-2024 by order dated 10-09-2024. Thus, on the date
of election, the Respondent No.1 was holding a post of Chief
Administrator.
6. It is alleged that, the office of Administrator is under the
supervision and control and at the pleasure of the State Government.
The APMC is engaged in profit-making activities, where members of the
Board and the Chief Administrator are entitled to receive remuneration
and allowances as prescribed by the State Government vide circular
dated 10-06-2021 which is on the percentage basis and on the income of
the APMC. Thus, the petitioner was not qualified to contest the election,
as he was holding an office of profit. It is shown that the respondent
No.1 received Rs.5,775/- from Jalna APMC during the period from 26-
12-2023 to 03-12-2024, which covers the period of entire election
(6) EP-03-2025
process. It is contended that though information was solicited from
APMC, no complete information was provided by the APMC, and the
petitioner, therefore, was required to approach higher authority. It is
further alleged that there are 1,05,430 persons associated with Jalna
APMC as members and traders who are also the voters in the Legislative
Assembly polls. Thus, the respondent No.1 is benefited because of his
dominant position as he forced/coerced the voters to vote in his favour.
7. In his nomination papers, the respondent No.1 suppressed the fact
that he was holding office of the Chief Administrator of the Jalna APMC,
which is an office of profit, and falsely made a statement that, he is not
holding any office of profit under the Government while answering
Clause-12(2) of [Part-III(A)] of the Nomination Form, he falsely stated
that the said clause is not applicable to him.
8. Further allegation is about affidavit in Form-26 stating that, same
is not in prescribed format. It does not contain the additions,
improvements and amendments carried out by amending Act of 2017
and 2019 and is not as per the instruction of Respondent No.2/Election
(7) EP-03-2025
Commission. For this reason also, his nomination form was wrongly
accepted. There is no statement that he informed his political party
about the offences pending against him as per the mandate of Clause
6-A of Form-26. Though objections were raised at the time of scrutiny of
nomination papers, the said was turned down by the Returning Officer
and the form was accepted. No corrective steps were taken to fill the
affidavit in Form-26 and reliance was placed on the already submitted
affidavit. Some other candidates had also raised the objections, however,
those were also rejected by the Respondent No.3. It is alleged in the
election petition that inspite of efforts, no video shooting is supplied to
the petitioner. It is only on 18-12-2024 after direction from the Deputy
Election Officer, the copies of video were supplied.
9. Further allegations are in respect of not keeping proper records of
account of votes in Form 17-C at every polling booth at the closing of the
polling. There were no entries made of conducting mock polling in 321
booths. It is alleged that, no mock polls were conducted. Some
Electronic Voting Machines (for short “E.V.M.”) though were not used for
(8) EP-03-2025
voting, those were taken for counting the votes, which could not have
been done. There are infractions in Form 17-C as per records supplied by
the Election Commission. The objections were not entertained even on
that ground. The total 2,24,038 votes were tendered. The respondent
No.1 secured 1,04,665 votes and Petitioner secured 73,014 votes. These
votes are in favour of the person whose nomination is wrongly accepted
and thus the result of the election is materially affected. Application filed
for recounting was rejected though a case was made out to go for
recounting. It is on these grounds, it is prayed that the election of
respondent No.1 be quashed and set aside.
10. In the petition, the respondent No.1/returned candidate appeared
and filed this application (Exh.15). It is the case of the respondent No.1
that in the pleadings of the petition, there is no disclosure that there is
any office of Chief Administrator to APMC or Board of Administrator as
such. The Board of Administrators is only temporary and stop-gap
arrangement under the provisions of Maharashtra Agricultural Produce
Marketing (Development and Regulation) Act, 1963. There is no
(9) EP-03-2025
statement that the said office is under the State Government. It is not
contended that the office is not covered under the provisions of the
Maharashtra Legislature Members (Removal of Disqualification) Act,
1956. Such material facts are not pleaded and therefore, the petition
deserves to be dismissed. Petition be dismissed for non-compliance of
Section 81(1)(a) of the R. P. Act.
11. The application is on the following grounds:
(i) The office held by the petitioner was not an office
of profit under the Government.
(ii) The petition suffers from defects, as the affidavit in
Form-26 submitted by the petitioner is defective
and in violation of the provisions of the R. P. Act,
Rules and the guidelines.
(iii) The petition does not disclose any cause of action,
as no triable issue is involved.
12. Mr. Deshpande, the learned Senior Advocate for the respondent
No.1 vehemently argued that in support of Annexure-ZL, there is no
document to substantiate the averment in the para 30 of the petition.
( 10 ) EP-03-2025
Schedule-II only shows difference at serial Nos.6 and 45. The difference
is only of one vote which hardly can be said that it had materially
affected the outcome of the petition. In the petition, No sufficient
particulars are given as to how the election is actually affected
materially. There is no cause of action to file a petition. The application
made for recounting was rightly rejected as no discrepancies were found
by the officers, and therefore, recounting was refused by the officer. No
actual number of votes are given to show that those were actually
influenced. The petition is filed only on suspicion. In the postal ballet,
the petitioner secured more votes than the respondent. The postal
ballets were only 1557 and that would not show that the election is
materially affected. No triable issue is made out. At every stage, the
polling agents are given opportunity, however, no objections were raised
at appropriate stage. The objections are now taken only after the
election is over. He points out that the election petition was filed on
03.01.2025. Though, the defects were pointed out by the Registry of this
Court, the objections (ii) and (v) are not removed. For about 10
months, no care is taken to remove defects. The petitioner is thus not
( 11 ) EP-03-2025
prosecuting the petition seriously. Some of the pages are not found in
the copy supplied to Respondent No.1 and are missing. No case of
violation of specific provision is made out. He invited attention to Rule 9
of the Bombay High Court Original Side Rules, providing time line to
remove office objection. In fact, the petition ought to have been kept for
dismissal by the office itself before placing it before the Court. On that
ground also, in his submission, the petition deserves to be dismissed.
13. He argued mainly on the point of office of profit. He submits that
in Article 191 of the Constitution of India, a word “local authority” is
absent unlike in Articles 58 (2) and 66(4). He submits that when the
legislature has consciously not used the word “local authority” in Article
191, it cannot be inferred that the petitioner was disqualified for holding
the post assuming any office of profit of the local authority. The APMC is
established under the Act of the State and it is local authority and not
authority under the State. No such bar is attracted to person holding any
post in APMC as the said office cannot be said to be an office of profit
under the Government. He points out Sections 40 and 41 of the APMC
( 12 ) EP-03-2025
Act to show that the Government only has a supervisory control. There is
no salary attached to the said post. The payment is only towards
attending the meetings and daily allowances. The respondent No.1 is not
getting any monetary benefits. He took this Court through constituent
assembly debates to show that deliberately the word “local authority” is
omitted from Article 191. Thus, the intention of the Constitution is clear
that local authority is not there in Article 191. It is only in Articles 58(2)
and 66(4) of the Constitution of India i.e. for the election of President
and Vice President. No contrary interpretation can be given. The
appointment to the post was only a stop-gap arrangement.
14. So far as Form-26, he submits that the allegation is only about the
changed form. However, that would not materially affect election as it
has nothing to do with the effect of the result of the election. The form
is, in fact, as per the provisions under the R. P. Act that would not attract
the case under Section 100(1)(c) and 100(1)(d),(i),(ii) and (iv). He
submits that it is perfectly as per Conduct of Election Rules, 1961. He
took this Court to the requirement of correct nomination. In Rule 4(A),
( 13 ) EP-03-2025
there is no mention of Rule 33(A) and no consequences are provided for
violation of section 33(A). It is only a right given to a person to get a
relevant information. Thus, the objection as regards Form 26, in his
submissions, is trivial and technical. No case is made out by that the
votes are mislead thereby. As far as Rule 49-A and 56 (2)(c) of counting
of vote is concerned, he submits that everything is done in the presence
of the parties, the polling agents and the Presiding Officer etc. It is only
after the counting of voting is completed, Part-II is filled by taking
proper care. No any objection was raised at that time. The objections
were raised by the another candidates and not by the petitioner and thus
the petitioner cannot rely upon the objections taken by other persons.
The petitioner is thus not coming with clean hands. Rule 49 (MA) is to
be complied in case of a complaint. By relying on Form 17-C, nothing
can be shown that no mock polls were conducted. The petitioner himself
annexed annexure (page-755) which shows that the officers have
scrupulously followed the entire process. There is no material placed on
record to show that there were discrepancies in number of votes polled
and votes counted. There is nothing to show that no any objection was
( 14 ) EP-03-2025
raised at the relevant time by the polling agent of the petitioner. The
allegation was only on suspicion and lacks in particulars. Thus, there is
no triable issue raised on this aspect as well. The discrepancies at the
most is in respect of 21 booths. No tampering with EVM is shown.
Taking both the allegations as it is, at the most the alleged mis-matched
number 5745 cannot be set to have affected the result materially.
15. The allegation of non-disclosing the information about the crime is
concerned, it is submitted that in the petition no such particulars are
given of the crime or the offences which are allegedly suppressed. In
Form-26, in fact, the details of two cases are given, and about that, there
is no dispute. There is no averment in the petition to show that the
disclosure is false and incorrect. There is no statement that there are any
other offences pending against the petitioner than disclosed in the form.
The details are given in form which are at serial No.7. By relying on
Section 36(4) of the R. P. Act. he submits that the defects should be of
substantial character. In the present case, the objections are of trivial
nature.
( 15 ) EP-03-2025
16. So far as the counting of votes is concerned, he submits that the
circular issued by the Election Commission under Rule 49(A) of the
Conduct of Election Rule is followed. He relied on the handbook issued
by the Election Commission. He submits that the test poll is different
than the mock poll. All the forms are on record. There are no positive
statements made by the petitioner as regards how the election is
materially affected. There is no corrupt practice adopted by the
respondent No.1 during the conduct of election. No one is made party by
name. The petition is based on the assumption, presumptions and
conjunctures. No averment is made to show violation of Section 100(1)
(a) and 100(1)(d) of the R. P. Act. The allegations are general in nature.
He thus prays for allowing the application. He thus submits that the
election petition deserves to be dismissed.
17. In support of his submission, he relied upon the following
judgments:
(i) Smt. Shobha Dinesh Bacchav Vs. Dr. Shri Subhash
Ramrao Bhamre, passed by this court at Aurangabad
Bench in Application in E.P./35/2024 in Election
Petition No.2 of 2024.
( 16 ) EP-03-2025
(ii) Ajmera Shyam Vs. Kova Laxmi and Ors. [2025 Scc
OnLineSc 1723];
(iii) Shambhu Prasad Sharma Vs. Shri. Charan Das
Mahant and Ors. [(2012) 6 SCR 356];
(iv) Kanimozhi Karunanidhi Vs. A. Santhana Kumar and
Ors. [2023 SCC OnLine SC 573];
(v) Naresh Ganpat Mhaske Vs. Rajan Baburao Vichare,
passed by this Court at Principal Seat in EP(L)
No.30947 of 2024 in EP/03/2024.
(vi) Gati Ravanna Subanna Vs. G. S. Kaggeerappa [(1954)
2 SCC 95];
(vii) Abdul Shakur Vs. Rikhab Chand [1957 DGLS (SC)
80];
(viii) D. R. Gurushantappa Vs. Abdul Khuddus Anwar [1969
DGLS (SC) 24];
(ix) S. Umrao Singh Vs. Darbara Singh [1968 DGLS (SC)
164];
(x) Surya Kant Roy Vs. Imamul Hai Khan [AIR 1975 SC
1053];
(xi) Divya Prakash Vs. Kultar Chand Rana and Anr.
[(1975) 1 SCC 151];
(xii) Ashok Kumar Bhattacharyya Vs. Ajoy Biswas and Ors.
[(1985)1SCC 151];
(xiii) Satruchar Lalchandra Sekhar Raju Vs. Vyricherla
Pradeep Kumar Dev [1992 DGLS (SC) 562];
(xiv) Som Lal Vs. Vijay Laxmi and Ors. [2008 DGLS (SC)
443];
( 17 ) EP-03-2025
(xv) U. C. Raman Vs. P. T. A. Rahim and Ors. [2014 DGLS
(SC) 639];
(xvi) S. R. Rangappa Vs. Girirajkumar, I.L.R. [1990 Kar
3256 (Karnataka HC)];
(xvii) Ramakrishna Hegde Vs. State of Karnataka ILR [1992
Kar 3028 (Karnataka HC)];
(xviii) Shrikant Vs. Vasantrao [2006 DGLS (SC) 42];
(xix) Michael Vincent Lobo Vs. Joseph Robert Sequeria and
Ors. [2019 DGLS (Bom) 1700 (Bombay HC)].
(xx) Association for Democratic Reforms Vs. Election
Commission of India and Ors. [AIR 2024 SC 2203].
(xxi) D. K. Sidram Vs. Eshwar Bhimanna Khandre and Ors.
[2022 DGLS (Kar.) 10];
(xxii) Satya Narain Vs. Dhuja Ram and Ors. [AIR 1974 SC
1185];
(xxiii) Surendra Budhaji Borkar Vs. Narayan Tatu Rane
[2010 (6) ALLMR 741];
(xxiv) C. P. John Vs. Babu M. Palissery [AIR 2015 SC 16];
(xxv) Mithilesh Kumar Pandey Vs. Baidyanath Yadav and
Ors. [AIR 1994 SC 305];
(xxvi) U. S. Sasidharan Vs. K. Karunakaran and Ors. [AIR
1990 SC 924];
(xxvii) Public Interest Foundation and Ors. Vs. Union of
India and Anr. delivered by Hon’ble Supreme Court in
WP (C)/536/2011.
( 18 ) EP-03-2025
18. Mr. Kulkarni, the learned Advocate for the Petitioner, vehemently
argued that non-removal of office objections is only as regards office
objection which are not fatal to the election petition. So far as Clause
(A) in Form 26 is concerned, merely stating “not applicable” in the form
is not sufficient and is not in compliance with the requirement. Form 26
of the Election Conduct Rules has a sanctity, and therefore, it needs to be
filled in properly. When the affidavit is not in format, it cannot be
accepted. In the present case, Form 26 is filled-in in old format and not
in newly amended format. There is no mock poll conducted, which is
clearly in violation of Section 100(1)(d)(iv) of the R. P. Act. So far as
Article 191 is concerned, he submits that the State Government is given
power to exempt the posts where such disqualification is not attached.
The post of Administrator to the APMC is not exempted. In fact, the
posts are identified under the Maharashtra Legislative Members
(Removal and Disqualification) Act. There is no specific mention about
the post of Administrator showing that this post is exempted. In such
cases, now it is for the respondent to show that the office of
Administrator is exempted. Undisputedly, the appointment of the
( 19 ) EP-03-2025
respondent is made by the Chief Minister. There is sufficient pleading to
show that it is an office of profit. It is also shown that he has received
some remuneration. In view of the Maharashtra Legislative Members
(Removal and Disqualification) Act, every post is included unless
exempted under Schedule-I of the Central or State Act.
19. On the scope of Order VII Rule 11 of CPC, he relied upon the
judgment in the case of Vinod Infra Developers Ltd. Vs. Mahaveer Lunia
and Ors. [MANU/SC/0785/2025] and in the case of Virendra Nath
Gautam Vs. Satpal Singh and Ors. [MANU/SC/5401/2006] . He relied
upon the handbook for Returning Officer 2023 to show as to how the
mandatory provisions are not followed by the Election Officer. He asserts
that on 321 polling booths, no mock poll was conducted. He invited
attention to the mock poll certificates. The mock poll was also conducted
against the procedure given in the handbook. There is a wrong tally. He
submits that votes from the booths where proper procedure is not
followed will have to be discarded. Mere non-raising of objections at the
relevant stage will not validate the election. He submits that nothing is
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an empty formality in the conduct of Elections and in the procedure of
polling. He submits that EVM numbers are given which were not used
while polling but were used while counting the votes showing serious
violation. He submits that no blank spaces can be left in the nomination
form and in such cases, form needs to be rejected. A clear case is made
out to go for trial of the petition. He thus submits that the application
deserves to be rejected.
20. In support of his submission, Mr. Kulkarni relied upon the
following judgments:
(i) Vijay Laxmi Sadho Vs. Jagdish [AIR 2001 SC 600];
(ii) K. Babu Vs. M. Swaraj and Ors. [AIR 2024 SC 1043];
(iii) Saritha S. Nair Vs. Hibi Eden [AIR 2021 SC 483];
(iv) F. A. Sapa and Ors. Vs. Singora and Ors. [AIR 1991 SC
1557];
(v) Shibu Soren Vs. Dayanand Sahay and Ors. [AIR 2001
SC 2583];
[AIR 1964 SC 254];
(vii) Jaya Bachchan Vs. Union of India and Ors. [AIR 2006
SC 2119];
( 21 ) EP-03-2025
(viii) M. V. Rajashekaran and Ors. Vs. Vatal Nagaraj and
Ors. [AIR 2002 SC 742];
(ix) Vinod Infra Developers Ltd. Vs. Mahaveer Lunia and
Ors. [AIR 2025 SC 2933];
(x) Virendra Nath Gautam Vs. Satpal Singh and Ors.[AIR
2007 SC 581]
(xi) Sulakshana Raju Dhar Vs. Anna Dadu Bansode and
Ors. [2025:BHC:OS:21629];
(xii) Ashraf Kokkur Vs. K. V. Abdul Khader [AIR 2015 SC
147];
(xiii) Madiraju Venkata Ramana Raju Vs. Peddireddigari
Ramachandra Reddy and Ors. [AIR 2018 SC 3012];
(xiv) Resurgence India Vs. Election Commission of India
and Ors.[AIR 2014 SC 344];
(xv) Arun Dattatray Sawant Vs. Kisan Shankar Kathore
[MANU/MH/1613/2007];
(xvi) Kisan Shankar Kathore Vs. Arun Dattatray Sawant and
Ors. [AIR 2014 SC 2069];
(xvii) Mairembam Prithviraj and Ors. Vs. Pukhrem
Sharatchandra Singh and Ors. [AIR 2016 SC 5087];
(xviii) Karikho Kri Vs. Nuney Tayang and Anr. [2024 SCC
OnLine SC 519].
(xix) Arikala Narasa Reddy Vs. Venkata Ram Reddygai and
Ors. [AIR 2014 SC 1290];
(xx) Jaspal Singh Vs. O. P. Babbar [149 (2008) DLT 205],
(xxi) Debashish Samantaray Vs. Mohammed Moquim
[MANU/OR/0196/2024].
(xxii) Mangani Lal Mandal Vs. Bishnu Deo Bhandari; [AIR
2012 (SC) 1094.
(xxiii) Sangram Sampatrao Deshmukh Vs. Election
Commission of Indian and Ors. [2025 (2) AIR Bom. R.
209];
21. In rejoinder, Mr. Deshpande, learned Senior Advocate further
submits that, Article 191 of the Constitution of India, clearly omits the
word “local authority” as against Articles 58(2) and 66(4). Non-
mentioning of the post of Administrator in the Maharashtra Legislative
Members (Removal and Disqualification) Act, is not relevant. He relied
upon the judgments in the case of Shibu Soren Vs. Dayanand Sahay and
Ors. (supra), and in the case of Public Interest Foundation and Ors.
(supra) that the Hon’ble Apex Court has clearly laid down as to what is
required to be done by the candidates is only to inform his party. He
reiterated that no cause of action is disclosed. The certificate Annexure-
26 of the handbook is not a part of the Election Petition. The pleading is
also deficient and contrary to record. It was necessary to show that test
votes or mock votes have materially affected the petition. He relied upon
the judgment Shambhu Prasad Sharma (supra), Jaspal Singh Vs. O. P.
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Babbar (supra), and Naresh Ganpat Mhaske (supra).
22. On going through the submissions, followings questions needs to
be answered:
(i) whether the office held by the applicant can be said to
be an office of profit.
(ii) whether there is sufficient averment to show that the
nomination form of the respondent is wrongly accepted
(iii) whether the petition discloses the cause of action
making out a case to go for trial.
23. Before considering the averments in the present petition and the
application, this Court finds it necessary to go through legal position as
appearing from various pronouncements relied upon by the parties.
24. In the case of Smt. Shobha Dinesh Bacchav Vs. Dr. Sushbash R.
Bhamre (supra), in that case, election petition was dismissed for want of
sufficient averments. In the said case, in the petitioner did not disclose
the source of information as regards the allegation that the ladies
wearing burkha and casted vote in particular way. However, the petition
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was rejected merely on the ground of jurisdiction.
25. In the case of Ajmera Shyam Vs. Kova Laxmi and Ors. (supra), the
Hon’ble Apex Court considered as to whether non-disclosure of the
income as shown in the income tax returns for four financial years out of
the last five financial years in Form 26 Affidavit of the nomination paper,
and acceptance of such nomination, would amount to improper
acceptance of the nomination. A further question was as to whether such
non-disclosure would amount to a corrupt practice by a returned
candidate. The High Court had concluded that the election cannot be
declared null and void under Section 100 of the R.P. Act, as such non-
disclosure does not constitute a corrupt practice that would have
materially affected the outcome of the election. It was found by the High
Court that there was no deliberate suppression of information and there
was no corrupt practice. The Hon’ble Apex Court, in that view of the
matter, held that non-disclosure of income, assets and educational
qualifications should not be unreasonably stretched to invalidate an
otherwise validly declared election over a minor technical non-
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compliance. Thus, by concluding this, the appeal came to be dismissed
confirming the judgment of the High Court. In the said judgment, the
court also considered the post-election scrutiny. It is held that once the
election is concluded and the voters have delivered their verdict, and
after the same is made public, a new dimension is introduced and that is
people’s mandate. It is held that the peoples mandate cannot be
overlooked by the Court while examining the legality of the acceptance
of the nomination. The Court considered that the mistake in that case
was technical, the issue of local authority and triable issues were not
involved and that no specific instances were given.
26. In the case of Shambhu Prasad Sharma Vs. Charandas Mahant and
Ors. (supra), it was found that there were no sufficient averments made
and no material particular facts were disclosed to show that there was
outstanding dues payable to any financial institution or the Government
by the returned candidate or any other candidate whose nomination
papers were accepted. The objection was about the form of the affidavit
and not the substance of the affidavit. It was held that merely because
( 26 ) EP-03-2025
there were defects in the format of the affidavit, the same will have to be
seen in the light of Section 36(4) of the RP Act, which speaks of defects
of a substantial character. The verdict would rather show that no form
shall be rejected unless there are defects of a substantial character.
Merely because there are defects in the affidavit, unless it is shown that
it is of a substantial nature, the election of returning officer shall not
refuse to accept the form.
27. In the case of Kanimozhi Karunanidhi Vs. A. Santhana Kumar and
Ors. (supra), it was held that the mere bald and vague allegations
without any basis would not be sufficient compliance with the
requirement of stating material facts in the election petition. The
positive statement as regards negative facts is also required to be stated,
as such facts would be a material facts constituting a cause of action. It
was held that Section 83(1)(a) of the Act mandates that the election
petition shall contain a concise statement of material facts on which the
petitioner relies, and which facts constitute a cause of action. It is only
then the petition can be proceeded further.
( 27 ) EP-03-2025
28. In the case of Gati Ravanna Subanna Vs. G. S. Kaggeerappa
(supra), the Hon’ble Apex Court considered the concept of holding an
office of profit. The Court further considered Section 2 of the Karnataka
Legislature (Prevention of Disqualification) Act. In the said case, the
candidate was holding office of chairman of the Government Committee.
If such person holds such a position in a purely honorary capacity and
no remuneration is attached to the office, then in that case such person
would not be regarded as holding an office of profit. The candidate in
that case was holding the post of office of chairman of a Taluka
Development Committee, wherein he had no executive duties to perform
them. He was only required to preside over duties convened by
Secretary and was entitled to fee of Rs.6 of each sitting he attended. It
was held that the said amount of Rs.6 was not towards fees or
remuneration or profit but was a consolidated fees for out-of-pocket
expenses. It was thus held that the candidate was not holding an office
of profit under the Government at the material time and was thus
entitled to be chosen as a Councillor under the Karnatala Town
Municipality Act.
( 28 ) EP-03-2025
29. In the case of Abdul Shakur Vs. Rikhab Chand (supra), the
question considered was about the office of profit under the Government
of India. The Court noticed the difference in the language between two
Articles and held that the holding an office of profit under local
authority subject to the control of the Government attracts
disqualification in cases of election to the post of President and Vice-
President. However it is not so in the cases of members of the
legislature. The Hon’ble Court considered Article 102(1)(a) and Article
58 and 66(4) of the Constitution of India.
30. In the case of D. R. Gurushantappa Vs. Abdul Khuddus Anwar
(supra), the question again was about wordings of Article 58(2), 66(4)
and Article 102(1)(a) and 191(1)(a) of the Constitution of India, and it
was held that the office of profit under local authority is not included
under Article 191 of the Constitution. In the recent pronouncement of
judgment in the case of Surya Kant Roy Vs. Imamul Hai Khan (supra),
the Hon’ble Apex Court considered the judgment of D. R.
Gurushantappa (supra). It is held that holding of an office of profit
( 29 ) EP-03-2025
under corporate body like a local authority does not bring
disqualification even if that the local authority is under the control of the
Government. A mere control of the Government over an authority
having the power to appoint, dismiss and control the working of the
officer employed by such authority does not disqualify the officer from
being a candidate.
31. In the case of S. Umrao Singh Vs. Darbara Singh (supra), the
allegation against the elected candidate was that he was holding an
office of profit under State Government. The High Court dismissed the
election petition and the appeal was thereafter carried to the Hon’ble
Apex Court. The candidate therein was the Chairman of Panchayat
Samiti. The Court considered Rules 3 and 7 of the Punjab Panchayat
Samitis and Zilla Parishads, Non-Official Members (payment of
allowances) Rules, 1965. Rule 3 prescribed that a monthly consolidated
amount shall be paid at certain rates for performing of official duties and
journeys concerning the panchayat samiti or zilla parishad, as the case
may be, within the district. Rule 7 prescribed the daily allowances to the
( 30 ) EP-03-2025
chairman, vice chairman and members at certain rates. On recording
evidence and holding the trial, the high Court considered the provisions
of State Legislature (Prevention of Disqualification) Act, 1952 which
removes the disqualification attached to the office of chairman of the
Panchayat Samiti or Zilla Parishad. On recording this finding, it was held
that the elected candidate was not holding an office of profit.
32. In the case of Divya Prakash Vs. Kultar Chand Rana and Anr.
(supra), the question was about disqualification for holding an office of
profit. In that case, the candidate was holding the post of chairman of
Board of School Education of Himachal Pradesh in honorary capacity.
The Hon’ble Apex Court by considering section 3 of the Himachal
Pradesh Board of School Education Act and provisions of Himachal
Pradesh Legislative Assembly Members (removal of disqualification) Act,
1971, holding that the candidate was not holding an office of profit.
33. In the case of Ashok Kumar Bhattacharyya Vs. Ajoy Biswas and
Ors. (supra), Satruchar Lalchandra Sekhar Raju Vs. Vyricherla Pradeep
( 31 ) EP-03-2025
Kumar Dev (supra), Som Lal Vs. Vijay Laxmi and Ors. (supra), U. C.
Raman Vs. P. T. A. Rahim and Ors. (supra), S. R. Rangappa Vs.
Girirajkumar, I.L.R. (supra), Ramakrishna Hegde Vs. State of Karnataka
ILR (supra), Shrikant Vs. Vasantrao (supra), Michael Vincent Lobo Vs.
Joseph Robert Sequeria and Ors. (supra), all these judgments are in
respect of holding the post of office of profit, this court finds that it is
not necessary to discuss all these judgments here.
34. In the case of Association for Democratic Reforms (supra), it is
held that the Court cannot allow the entire process of the general
election to be called into question on mere apprehension and
speculation of the petitioners. The apprehension in that case was held to
be misplaced. In that case, it was recorded that the petition was filed
merely on suspicion of infringement of a right, which cannot be
considered to be an adequate ground to invoke the writ jurisdiction. A
doubt was raised about the efficacy of EVMs. It was held that the issue is
conclusively settled.
( 32 ) EP-03-2025
35. In the case of Satya Narain Vs. Dhuja Ram and Ors (supra), it is
about the purity of the elections. The Hon’ble Apex Court held that total
non-compliance with Section 81(3) will entail dismissal of the election
petition under Section 86 of the RP Act.
36. In the case of Surendra Budhaji Borkar Vs. Narayan Tatu Rane
(supra), the petition was found to be defective. It was held that even
single material facts is missing, that itself is sufficient to dismiss the
election petition. Inspite of petition being defective, no effective steps
were taken in that regard and on that ground the election petition was
dismissed.
37. In the case of C. P. John Vs. Babu M. Palissery (supra), the petition
was dismissed as no cause of action was disclosed. In that case, defects
were also pointed out in the election petition as well as in the affidavit.
The affidavit was found to be deficient not only in form but also in
substance. No specific pleading about payment of bribe such as date,
time and place at which alleged bribe was stated. The pleading of
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corrupt practice was not supported by proper affidavit. It was held that
said averment did not satisfy statutory requirement of Section 83(1) of
the Act and on that ground the petition was dismissed by the High
Court. The said order came to be confirmed by the Hon’ble Apex Court.
38. In the case of Mithilesh Kumar Pandey Vs. Baidyanath Yadav and
Ors. (supra), in that case also it was found that there was a serious error
in the petition. It was held that the high court committed a serious error
of law in holding that there had been substantial compliance of
provisions of Section 81. Consequently, the application under Order VII
Rule 11 of CPC was set aside and the election petition was dismissed.
39. In the case of U. S. Sasidharan Vs. K. Karunakaran and Ors.
(supra), it was held that Sections 81(3) and 86(1) are mandatory in
nature. If there is non-compliance with these mandatory provisions, the
court would be bound to dismiss the election petition. The election
petition was dismissed by the High Court and the said order was upheld
by the Hon’ble Apex Court.
( 34 ) EP-03-2025 40. So far as judgment relied upon by the election
petitioner/Respondent No.1 are discussed are below. In the case of Vijay
Laxmi Sadho Vs. Jagdish (supra), the Hon’ble Apex Court considered
that though the petition did not comply with provision of Sections 81, 82
and 107 of the Act, it was still not liable to be dismissed in limine under
Section 86 for non-compliance with the provision of Section 83(1) or its
proviso. It is considered that the rules framed by the High Court relating
to trial of election petition are only procedural nature and do not
constitute into “substantial law”. It was on the ground of language of the
Supreme Court and the High Courts. In the said case, the High Court
had rejected the application under Order VII Rule 11 of CPC. The
application was filed seeking rejection of the petition on the ground that
the affidavit filed in support of allegations of corrupt practice was not
drawn in the manner prescribed under Section 83(1) of the Act r/w Rule
94-A in the prescribed Form 25. The defects was taken to be fatal.
However, the said application was rejected and the order of high Court
came to be confirmed by the Hon’ble Apex Court.
( 35 ) EP-03-2025
41. In the case of K. Babu Vs. M. Swaraj and Ors. (supra), a
preliminary objection was raised in the election petition for non-
compliance with section 81 of the Act. The petition, after removing the
defects, was placed before the Court beyond the period of limitation and
the required number of copies were not filed. The High Court rejected
the application holding that there was no merit in the objection. The
order of the high Court was confirmed.
42. In the case of Saritha S. Nair Vs. Hibi Eden (supra), the application
was filed for dismissal of the election petition on the grounds that (i) the
petition was suffered from defects of lack of proper verification (ii)
incomplete prayers and (iii) allegations of serious nature made against
the Chief Minister. The second ground was that the punishment imposed
upon the petitioner in two criminal cases i.e. imprisonment for a period
of not less than two years in each case. In the said case, the high Court
held the defects to be incurable and dismissed the petition. The Hon’ble
Apex Court considered that the defects were curable and held that an
opportunity ought to have been given to the petitioner to cure the
defects.
( 36 ) EP-03-2025
43. In the case of F. A. Sapa and Ors. Vs. Singora and Ors. (supra), the
election petition was filed on the ground of corrupt practices. The
amendment to the election petition was sought and the amendment was
permitted. Certain defects in the verification of the election petition
were pointed out. However, it was held that the petition cannot be
thrown out solely on the ground of defects in the verification of election
petition.
44. In the case of Shibu Sorein Vs. Dayanand Sahay and Ors. (supra),
it was a case of disqualification on holding of an office of profit. The
Hon’ble apex Court held that the allegation was that the elected
candidate was holding the post of Chairman of the Interim Jharkhand
Area Autonomous Council (for short ‘JAAC’), set up under the Jharkhand
Area Autonomous Council Act, 1994 (hereinafter the JAAC Act). The
post enjoyed the status of a Minister while functioning as Chairman of
the Interim Council. The Hon’ble Court considered Article 102(1)(a)
corresponding to Article 191(1)(a) of the Constitution of India. The
Hon’ble Court held that mere holding of an office is not material. What
( 37 ) EP-03-2025
is material is holding an office of profit under the Government, other
than an office declared by the competent legislature by law not to
disqualify its holder. It is further considered that the pecuniary gain is
not a relevant factor in such cases. The Court further considered the
provision of the JAAC Act, the power and functions etc. and held that
the said office was an office of profit which is not exempted under the
Parliament (Prevention of Disqualification) Act, 1959, and therefore the
disqualification contained under Article 102(1)(a) was squarely
attracted.
45. In the case of Gurugobinda Basu Vs. Sankari Prasad Ghosal and
Ors. (supra), it is held that the elected candidate was appointed as
Auditor of Government-owned companies. It was held that a person
need not be in the service of the Government, and there need not be any
relationship of master and servant between them. By considering the
case of Maulana Abdul Shakur vs. Rikhab Chand and Ors.
[MANU/SC/0074/1957], it was held that a person can still be said to be
a person holding an office of profit.
( 38 ) EP-03-2025
46. In the case of Jaya Bachchan Vs. Union of India and Ors. (supra),
the petitioner was appointed as Chairperson of U. P. Film Development
Council and was entitled to get honorarium of Rs.5,000/- per month and
daily allowance, staff car with driver etc. The petitioner was declared
disqualified for member of Rajya Sabha. The question as to whether the
President was right in holding such a person as disqualified was
answered in affirmative, holding that the office was capable of yielding
profit or pecuniary gain. It is immaterial whether the person actually
received the gain or not.
47. In the case of M. V. Rajashekaran and Ors. Vs. Vatal Nagaraj and
Ors. (supra), the Hon’ble Apex Court considered the Karnataka
Legislature (Prevention of Disqualification) Act, 1956 and concluded
that the post of Chairman of the Commission is an office of profit. It was
held that the amount given could not be said to be a compensatory
allowance within the ambit of Section 2(b) of the said Act and was held
to make the holder liable for disqualification as holding an office of
profit. On that ground, the nomination of the respondent therein was
( 39 ) EP-03-2025
rejected. The High Court had set aside the order of rejection of
nomination. The Hon’ble Supreme Court set aside the order of the High
Court holding that it was indeed an office of profit.
48. In the case of Vinod Infra Developers Ltd. Vs. Mahaveer Lunia and
Ors. (supra) the High Court had rejected the plaint on only one issue,
holding that the other issues merely remained to be academic issue. The
said order was set aside. It was held that every cause is a distinct cause
of action. The plaint cannot be rejected even if only one ground survives.
49. In the case of Virendra Nath Gautam Vs. Satpal Singh and Ors.
(supra), the Court considered a distinction between material facts and
particulars. The material facts are primary or basic facts which must be
pleaded by the plaintiff or by the defendant in support of the case set up
by him, either to prove his cause of action or defence. Particulars are
held to be details in support of material facts pleaded by the party. They
amplify, refine and embellish material facts by giving distinctive touch to
the basic contours of a picture already drawn, so as to make it full, more
clear and more informative. It is held that what is material in the
( 40 ) EP-03-2025
pleading are the facts and not the particulars. The Court considered
facta probanda i.e. the facts required to be proved and facta probantia
i.e. the facts by means of which they are proved. It is held that what is
necessarily to be stated are only the material facts and not the
particulars.
50. In Sulakshana Raju Dhar Vs. Anna Dadu Bansode and Ors. (supra),
the question was of material facts and material particulars. It was held
that it is the material facts which are required to be pleaded. In the case
of Ashraf Kokkur Vs. K. V. Abdul Khader (supra), the court considered as
to what is the cause of action. In the said case, the High Court rejected
the election petition holding that it did not clearly contain the pleading
that the respondent held an office of profit under the State Government
and dismissed the petition. It was held that the election petition was
containing the cause of action. In that case, the respondent was the
Chairperson of the Kerala State Wakf Board when he contested the
election to the Kerala Assembly. It was held under that Act that it was an
office of profit.
( 41 ) EP-03-2025
51. In the case of Madiraju Venkata Ramana Raju Vs. Peddireddigari
Ramachandra Reddy and Ors. (supra), it was also considered in this
judgment that when the nomination papers itself is accepted improperly,
then it is immaterial as to whether it has affected the election materially.
52. In the case of Resurgence India Vs. Election Commission of India
and Ors (supra), there was suppression and non-disclosure regarding the
purchase and ownership of substantial property. If the facts had been
disclosed, the voters would have come to know that the property was
purchased from undisclosed source of income, which would certainly
have materially affected the election.
53. In the case of Arun Dattatray Sawant Vs. Kisan Shankar Kathore
(supra), the question was about improper acceptance of the nomination
papers by the Returning Officer. It was found that the nomination paper
was suffering from the defects and it was held to be a case of improper
acceptance of the nomination papers. It was further held that since the
nomination paper itself was improperly accepted, that certainly affected
( 42 ) EP-03-2025
the outcome of the election. In the said case, a landed property of 15
Acres and 84 Acres that was purchased under registered sale-deed was
suppressed. This was held to be a deliberate suppression. Even vehicles
owned by the spouse and about the loan from the District Central Co-
operative Bank was also suppressed. Certainly, one can come to the
conclusion that there is suppression of material facts which, in case of
disclosure, would have changed the mind of people. It was held that in
such cases, the acceptance was improper, and therefore, it was not
required to prove as to how that materially affected the election. The
election was set aside. The same was carried to the Hon’ble Apex Court.
The Hon’ble Apex Court confirmed the order passed by the High Court
in the judgment reported in [AIR 2014 SC 2069] in the case of Kisan
Shankar Kathore Vs. Arun Dattatray Sawant.
54. In the case of Mairembam Prithviraj and Ors. Vs. Pukhrem
Sharatchandra Singh and Ors. (supra), the nomination of the candidate
was objected to on the ground of false declaration relating to
educational qualifications. The Returning Officer directed the candidate
( 43 ) EP-03-2025
to furnish proof of his educational qualifications. However, the
declaration was given in Form 26 without producing any supporting
documents and the Returning Officer accepted the said nomination. It is
thereafter the said candidate came to be elected. The election was
challenged under Section 125(1) and 127 of the Act. The allegation was
also of corrupt practices. The defeated candidate filed election petition
seeking declaration that the election of the returned candidate was null
and void and further declaration was sought that the petitioner therein
is duly elected as there were only two candidates in the fray. After trial,
the election petition was allowed and thus the elected candidate
approached to the Hon’ble Apex Court. The Hon’ble Apex Court held
that mere finding that there was improper acceptance of nomination is
not sufficient for declaration that the election is void under Section
100(1)(d) of the RP Act. It is also held that there has to be further
pleading and proof that the result of the election of the returned
candidate is materially affected. The order of the High Court was
confirmed by the Hon’ble Apex Court.
( 44 ) EP-03-2025
55. In the Arikala Narasa Reddy Vs. Venkata Ram Reddygai and Ors.
(supra), the Hon’ble Apex Court held that the instructions contained in
the handbook for Returning Officers are binding on the Returning
Officer. It was held by considering the judgment in the case of Ram Sukh
Vs. Dinesh Aggrawal [(2009) 10 SCC 541] and in the case of
Uttamraom Shivdas Jankar Vs. Ranjitsinh Mohte Patil [AIR 2009 SC
2975].
56. In the case of Debashish Samantaray Vs. Mohammed Moquim
(supra), in the said case, the nomination papers were not in prescribed
form. The returning officer had accepted the nomination papers by
violating mandate of section 33 of the Act read with Rule 4 of the 1961
Rules. In the said case, the elected candidate had not made proper and
full declaration of 13 criminal cases pending against him in the affidavit
filed in Form 26. The allegation was, therefore, made that the election
was materially affected. The election petition was allowed, holding that
the election of the elected candidate was void. In the present case,
however no cases are shown to be pending against the respondent which
( 45 ) EP-03-2025
are allegedly not disclosed by the candidate.
57. In the case of Mangani Lal Mandal Vs. Bishnu Deo Bhandari
(supra), it is held that, it is material to make averment showing that the
election is materially affected under Section 100(1)(d)(iv) of the RP Act.
The pleadings and the proof is sine qua non for invalidating the election
under the Section. Thus, there has been relation between which of the
Rules and law which has affected the result of the petition and if such
defects was not there, the result would have been changed.
58. In the case of Sangram Sampatrao Deshmukh Vs. Election
Commission of India and Ors. (supra), in the said case, there were
allegations that some of the names were repeated. It was held that only
because the said names nothing was placed on record. It was not in such
proof it would affect the result of the election. About improper reception
of the nomination, it was held that the allegation cannot be assumed to
be true unless prima facie material is placed on record. It was found that
the allegation as regards Section 100(1)(d)(iii) of the RP Act were vague
( 46 ) EP-03-2025
and insufficient to proceed the petition and on that ground, the
application under Order VII Rule 11 of CPC was allowed.
59. In the present case, following points arise for consideration:-
. It is clear that a person must hold an office of profit under the
Government, either of India or of a State. It is for the State Government
to declare that holding such an office shall not disqualify its holder. In
the present case, it is an admitted position that the respondent No.1 is
holding the office as Chief Administrator of APMC, which is not under
the Government either of India or of the State. There is no dispute that
the office is of the “local authority” under such circumstances, it cannot
be held to be an office of profit attracting disqualification.
60. Section 3 of the Parliament (Prevention of Disqualification) Act,
1959, excludes certain offices of profit holding of which are not to
disqualify, as given in the Section which includes offices held by a
Minister of the State or Deputy Minister for the Union or for any State,
and other offices given in clauses (a) to (h). The State has also passed an
( 47 ) EP-03-2025
enactment. Section 2 of the Maharashtra Legislature Members (Removal
of Disqualification) Act, removes the disqualification in certain cases,
which are mentioned in the Schedule-I of the Act. In Schedule-I, Item 9A
states various offices which do not attract disqualification. In the present
case, the respondent No.1 is appointed as Chief Administrator and is
entitled to receive remuneration, which is not in the nature of
compensatory allowance. This Court needs to consider this submission in
detail.
61. So far as office of profit is concerned, Article 191(1)(a) which is
material for the present person reads as under:
Article-191. Disqualifications for Membership, sub-section- (1) a
person shall be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council of the
State-
(a) if he holds any office of profit under the Government of India or
the Government of any State specified in the First Schedule, other
than an office declared by the Legislature of the State by law not to
disqualify its holder,
(b) if he is of unsound mind and stands so declared by a competent
court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of
allegiance or adherence to a foreign State;
( 48 ) EP-03-2025
(e) if he is so disqualified by or under any law made by Parliament.
Explanation.–For the purposes of this clause, a person shall not be
deemed to hold an office of profit under the Government of India or
the Government of any State specified in the First Schedule by reason
only that he is a Minister either for the Union or for such State.
62. There is no words “local authority” in Article 191 and it is
conspicuously absent, unlike Article 58(2) and 66(4). This needs to be
considered in the light of provisions of Parliament (Prevention of
Disqualification) Act, 1959. The said Act shows that it is an Act to
declare that certain offices of profit under the Government shall not
disqualify the holder thereof for being chosen as a member. The
Maharashtra Legislature Members (Removal of Disqualification) Act,
1956, is also enacted with the object and removing disqualification in
the cases where the offices are under the Government. Both these Acts
are not in respect of removal of disqualification for persons holding
offices in the local authorities. It is natural that these Acts are enacted
because every office under the State or the Central Government attracts
disqualification and it is for this reason, it is necessary to provide for
removal of such disqualification. Since the office of local authority does
( 49 ) EP-03-2025
not attract disqualification, there is no question of mentioning any office
of local authority in Schedule-I. The provisions of both these Acts,
therefore, need not be considered. This Court finds the submission of Mr.
Deshpande, the learned Senior Advocate that under Article 191, a
person holding the office under local authority is not covered, and
therefore, it will not attract disqualification, to be acceptable.
63. So far as defect in Form 26 is concerned, this Court finds force in
the argument of respondent No.1 that, in substance, the form is correct.
There is no suppression of material fact as such which can be said to be
in the nature of making the acceptance of that form as illegal. The
offences pending against the candidate were made known to the party
that set up the respondent as a candidate. No any other offence is
pointed out by the petitioner to show that it is not disclosed by the
respondent. In view of Section 36(4), the nomination paper is to be
rejected on account of defects of a substantial character. This Court thus
finds that the submission of learned Advocate for the respondent,
supported by the judgment in the case of Jaspal Singh Vs. O. P. Babbar
( 50 ) EP-03-2025
(supra), is correct. This submission is also fortified by judgments in the
cases of Shambhu Prasad Sharma (supra), Naresh Ganpat Mhaske
(supra) and Ajmera Shyam (supra).
64. So far as mock poll is concerned, the reliance is placed on Form
No. 17-C of all the 325 booths. It is pointed out that mock poll is
different than test vote under Rule 49(m)(a)(iv). The mock poll is
conducted under Rule 49(e), and information about mock poll is given
in Annexure 27 which is at page No.331 of the handbook for Returning
Officer of 2023. No such certificates are annexed by the petitioner. This
Court also finds substance in the submission of respondent No.1 that the
so-called mismatch between mock poll, booth and votes recorded is
based only on inference. It was necessary to show material facts as to
how the election is materially affected by the same. It is also shown that
the margin of votes is 31,651. So even by reducing the votes in the
alleged 64 booths, where the votes do not tally, the total is not 5797.
In those booths, the petitioner received 73,014 votes. Respondent
received 1,04,665 votes and the number of votes in those booths is only
( 51 ) EP-03-2025
5797. This Court thus finds force in the submission that even if those
votes are added to the votes of the petitioner, it would not make any
difference in the result of the election.
65. It is now well settled that mandate of people cannot be set aside in
casual manner. It is also now well settled that the election petition is a
special remedy under the special statute and not under common law,
and therefore, the petition needs to be in the form given under the Act
and in no other manner. So far as Form 26 is concerned, the allegations
are that it is not as per the new format but is in the old format, where
certain columns are not like those in the new format. However,
considering that aspect as well, it needs to be shown that the election
thereby is materially affected. There is nothing to show that the
nomination of the respondent No.1 was wrongly or improperly accepted
by the respondent No.3. It was necessary to show that the respondent
No.1 has adopted corrupt practice or that the nomination form is
improperly accepted. When no case is made out, this court has to
consider as to whether the result of the election is materially affected.
( 52 ) EP-03-2025
66. Election Petition is mainly filed on the grounds that the respondent
No.1 was holding an office of profit. Second ground is that the
nomination form of the respondent No.1 was wrongly accepted. This
Court has already held both the issues in favour of respondent No.1.
Consequently, this Court holds that no cause of action is disclosed to go
for trial. The judgment in the case of Jaya Bachchan Vs. Union of India
and Ors. (supra), is not applicable in the case of office of profit under
the Government. In the present case, it is the local authority and not
covered under Article 191 of Constitution of India.
67. In the present case, this Court finds that there is nothing to show
that the election is materially affected. Taken the admitted fact as it is
that the respondent No.1 happens to be the Chief Administrator of the
Market Committee will not lead to the inference that all the persons
associated with the said Market Committee will be influenced by the
respondent. Non-disclosure of holding of such a post, therefore, will not
make any difference. About the criminal cases also, when the respondent
No.1 has stated in his nomination that he has informed the pending
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cases to the political party that was sufficient compliance. This Court
finds force in the argument on this point of the learned Advocate for
respondent No.1. So far as suppression is concerned, it is also submitted
that the objection, though was taken, it was by the other candidates and
not by the petitioner. The respondent No.1, during the course of
argument, has shown to this Court the Constituent Assembly debates,
whereby after discussion, the word “local authority” is not used in
Article 191. No contrary interpretation now can be given. No case is
made out under Section 100(c), 100(d)(i)(ii)(iv) of the R. P. Act. There
is no violation of Rule 4(1) of Conduct of Election Rules and Sections 33
and 33(A). Consequently, this Court records that no case is made out to
proceed with the trial.
68. It is rightly pointed out that for not disclosing certain facts, no
consequence under Section 33(A) is provided, but it only gives a right of
information to the voters. The objections are of a trivial and technical
nature. Nothing is shown to indicate that the voters were misled by such
alleged suppression or non-disclosure of facts. From the Forms under
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Section 17-C which are signed by polling agents, it was necessary to
make specific averment as regards material to show that the discrepancy
of votes has affected the election materially. There is no material to show
that any objection was raised by the petitioner at the time of mock poll
that it being not conducted. This Court thus finds that this allegation is
based only on suspicion. When it was alleged that the offences are not
disclosed, it was necessary to show as to which offences were not
disclosed. Both the parties have taken this Court to the election
handbook to show some procedural aspects. However, this Court does
not find it necessary to discuss all those aspects since the main
allegations are about non-disclosure of material fact that the respondent
No.1 is holding an office of profit in the APMC.
69. Considering above, this Court finds that since it is not a material
fact, the suppression also cannot be said to have materially affected the
election result. In any case, it cannot be said that the respondent No.1
was holding an office of profit attracting disqualification under Article
191 of Constitution of India. For all these reasons, the Court is
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convinced that the petition deserves to be dismissed. Hence, the
following order:
ORDER
(i) Application No.158 of 2025 (Exhibit-15) filed under Order VII
Rule 11 of CPC in Election Petition No.03 of 2025, stands allowed and
consequently, Election Petition No.03 of 2025 stands dismissed. No order
as to costs.
(ii) In view of dismissal of Election Petition, pending applications, if
any, do not survive and accordingly stand disposed off.
[KISHORE C. SANT, J.]
D.A.Ethape P.A.
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