Case Note & Summary
The petitioner, Khalil Ahmed Shaikh Mannu Chaudhary, filed his nomination paper on 25 September 2009 for the Legislative Assembly Constituency No. 109, Aurangabad (East). On 26 September 2009, during scrutiny, the Returning Officer rejected the nomination on the ground that the information required under Form 3-C and the affidavit was not filled. The election proceeded among the validly nominated candidates, and Respondent No. 4, Darda Rajendra, was declared elected. Aggrieved by the rejection of his nomination, the petitioner filed Election Petition No. 17 of 2009 before the High Court of Judicature at Bombay, Bench at Aurangabad, challenging the election of Respondent No. 4 on the basis that the order rejecting his nomination was illegal and bad in law. Initially, Respondents 1 to 3 (the Election Commissioner of India, the Election Commissioner of Maharashtra, and the Returning Officer) were impleaded, but their names were deleted by the Court’s order dated 14 December 2010 on the ground that they were not necessary parties. Respondent No. 4 subsequently filed an application (Exh. 13) under Order VII Rule 11 of the Code of Civil Procedure, 1908, raising a preliminary objection that the election petition lacked a cause of action and did not disclose the necessary material particulars. The Court framed the following point for consideration: 'Whether in the facts and circumstances of the case, cause of action exists for the petitioner to file the present petition, if no, whether the petition can be dismissed/rejected at the threshold.' Both parties were heard at length and submitted written summaries of arguments. The senior counsel for Respondent No. 4 contended that Section 80 of the Representation of the People Act, 1951, is couched in negative terms and is mandatory, requiring strict compliance with the provisions of Part VI of the Act, including the pleading requirements under Section 83. He argued that the petitioner’s nomination was rightly rejected under Section 36(2)(b) for failure to comply with Section 33 because the petitioner had merely endorsed 'separate list annexed' without actually annexing the list of criminal cases required under Form 3-C and the affidavit under Form 26, which amounts to a defect of a substantial character. Reliance was placed on several Supreme Court decisions to emphasize that such non-compliance is fatal and that the petition itself did not challenge the core ground of non-annexure of the list. Consequently, the petition disclosed no cause of action and was liable to be rejected at the threshold. The counsel for the petitioner countered that the election petition is an original proceeding and the Court is duty-bound to examine the correctness of the Returning Officer’s decision on merits after trial; the rejection of the nomination itself constitutes a cause of action. He argued that the Returning Officer failed to give the candidate an opportunity to rebut the objections as required under Section 36(5) and (6) of the Act, and that whether the defect was of a substantial character or not is a question that requires evidence. He also cited a catena of authorities to support the proposition that an election petition should not be dismissed at the threshold merely on a preliminary objection. The Court, after summarizing the rival contentions, proceeded to consider the application. The judgment text concludes abruptly while summarizing the petitioner’s arguments, and the final decision is not contained in the available record.
Headnote
A) Election Law - Nature of Election Petition - Statutory Remedy - Representation of the People Act, 1951 - Election petition is a purely statutory proceeding unknown to common law; the success of a candidate should not be lightly interfered with; strict compliance with law is required (Para 1). B) Election Law - Cause of Action - Rejection of Election Petition - Representation of the People Act, 1951, Sections 80, 83, 87; Code of Civil Procedure, 1908, Order VII Rule 11 - An election petition must disclose a cause of action; if it fails to do so, it may be rejected at the threshold. Section 80 mandates filing in accordance with Part VI, which includes compliance with pleading requirements under Section 83 and application of CPC under Section 87 (Paras 5, 6). C) Election Law - Rejection of Nomination Paper - Defect of Substantial Character - Representation of the People Act, 1951, Sections 33, 36(2)(b) - Failure to complete the nomination form in the prescribed manner, including necessary disclosures under Sections 33 and 33-A and Form 26, constitutes a defect of a substantial character justifying rejection by the Returning Officer (Paras 5, 6). D) Election Law - Grounds for Challenge - Opportunity to Rebut - Representation of the People Act, 1951, Section 36(5)(6) - The Returning Officer must give the candidate an opportunity to rebut objections before rejection; whether such opportunity was denied is a question of fact requiring trial (Paras 6, 14).
Issue of Consideration
Whether in the facts and circumstances of the case, cause of action exists for the petitioner to file the present petition, if no, whether the petition can be dismissed/rejected at the threshold.
Law Points
- election dispute is a statutory proceeding
- success of candidate not lightly interfered
- strict compliance with law required
- Section 80 of RP Act is imperative
- nomination paper must be completed in prescribed form under Section 33
- rejection under Section 36(2)(b) for defect of substantial character
- cause of action required for election petition
- election petition can be rejected under Order VII Rule 11 CPC
