Case Note & Summary
The High Court of Judicature at Bombay, Aurangabad Bench, dismissed two election petitions challenging the election of the returned candidate from the 18-Pachora Assembly Constituency in the Maharashtra Legislative Assembly election held in October 2009. The petitioners, Tatyasaheb Patil (the defeated candidate) and Swati Patil (another contestant), alleged that the election was vitiated by the illegal inclusion of approximately 4,500 voters in the electoral roll after the last date for filing nominations, in violation of Section 23 of the Representation of the People Act, 1950, and sought to declare the election void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951. According to the election programme, the last date for nominations was 25 September 2009, polling took place on 13 October 2009, and the results showed that the returned candidate, Dilip Wagh, secured 79,715 votes, while the petitioner Tatyasaheb secured 73,501 votes, a margin of over 6,000 votes. The petitioners contended that a supplementary list containing about 4,500 new voters was published on 28 September 2009, which they claimed was in breach of the statutory bar against amending the electoral roll after the last date for nominations. The petitioner Swati Patil additionally argued that her own name had been wrongfully included subsequently, adversely affecting her candidacy. The returned candidate filed applications under Order 7 Rule 11 of the Code of Civil Procedure seeking rejection of the election petitions on grounds that they failed to disclose a cause of action and lacked material facts. The respondent argued that the petitions merely made vague allegations without specifying the identities of the disputed voters, did not show that all such voters had exercised their franchise or voted in a particular manner, and failed to demonstrate how the result was materially affected. It was also contended that challenges to the electoral roll should have been made under the 1950 Act and not through an election petition. The court framed four key issues: (1) whether the petitions pleaded material facts regarding the disputed voters; (2) whether the inclusion of 4,500 voters materially affected the election result; (3) whether the election petition was maintainable solely on the ground of non-compliance with Section 23 of the 1950 Act; and (4) whether the petitions failed for want of an affidavit supporting allegations of corrupt practice. Upon analysis, the court relied on settled legal principles that an election petition must contain all material facts necessary to constitute a complete cause of action, and failure to state even a single material fact justifies summary dismissal. The court found that the petitioners had not provided the list or details of the 4,500 voters, nor had they pleaded specific facts showing how the inclusion prejudiced their electoral prospects or affected the result. The margin of victory was substantial, and the petitioners’ burden to prove material effect was not discharged by mere conjectures. The court further held that the electoral registration process continues until the last date for nominations, and the publication of a supplementary list thereafter is a ministerial act that does not violate Section 23. Additionally, any grievances regarding entries in the electoral roll must be redressed under the machinery of the 1950 Act and cannot be raised collaterally in an election petition. As the petitioners had given up allegations of corrupt practice against the deleted official respondents, the absence of an affidavit was not fatal. Consequently, the court held that the petitions suffered from a lack of material facts and failed to establish any cause of action under Section 100(1)(d)(iv) of the 1951 Act. Both election petitions were dismissed.
Headnote
A) Election Law - Pleading Material Facts - Section 83, Representation of the People Act, 1951 - Order 7 Rule 11, Code of Civil Procedure, 1908 - An election petition must plead all material facts that constitute a complete cause of action. Failure to specify the details of the disputed voters, such as their names or the list, and how their inclusion prejudiced the petitioner amounts to lack of material facts. The court held that the petitions were liable to be rejected for want of material facts (Paras 10-12). B) Election Law - Material Effect on Result - Section 100(1)(d)(iv), Representation of the People Act, 1951 - The petitioner must prove that non-compliance with the Act materially affected the election result. The court observed that the winning margin was over 6,000 votes, and the petitioner failed to establish that the inclusion of 4,500 voters en bloc voted for the returned candidate or that the result was materially affected. The burden was not discharged (Paras 10-13). C) Election Law - Amendment of Electoral Roll - Section 23, Representation of the People Act, 1950 - After the last date for nominations, no addition or deletion is permitted in the electoral roll. However, the publication of a supplementary list is a ministerial act, and the process of registration continues until the last date. The petitioner's allegation of illegal inclusion was not a valid ground to void the election under Section 100(1)(d)(iv) of the 1951 Act (Paras 3, 8, 12). D) Election Law - Corrupt Practice - Sections 123 and 100(2), Representation of the People Act, 1951 - Affidavit Requirement - Where allegations of corrupt practice are not pressed, an affidavit is not required. The petitioner had conceded that corrupt practice allegations were not being pressed, and thus the petition could not fail for want of affidavit (Paras 9, 10). E) Constitutional Law - Exclusivity of Electoral Roll Challenges - Representation of the People Act, 1950 - The Act provides an exclusive machinery for challenging entries in electoral rolls. A collateral attack on the electoral roll by way of an election petition is not permissible. The petitioner did not avail the remedy under the 1950 Act and could not use the election petition to challenge the voters' list (Para 12).
Issue of Consideration
Whether the petitioner has pleaded details of objected 4500 electorate to demonstrate that they were newly added electorate; Whether petition fails for want of material facts under the election law / Code of Civil Procedure; Whether the inclusion of 4500 voters/electorate has materially affected the ultimate result of the election, causing prejudice to the petitioner or any of the contesting candidate; Whether the election petition is maintainable under Section 100 of Act of 1951, when infirmities in compliance to Section 23 of 1950 Act are only pleaded; Whether the petition fails for want of affidavit under Rule 94 alleging corrupt practice in terms of Section 123 of 1951 Act
Final Decision
Both election petitions (Election Petition No.4 of 2009 and Election Petition No.10 of 2009) are dismissed. The applications under Order 7 Rule 11 CPC are allowed. The petitions fail for want of material facts and lack of cause of action under Section 100(1)(d)(iv) of the Representation of the People Act, 1951.
Law Points
- Burden on election petitioner to prove material effect on result
- Material facts must be pleaded in election petition
- Section 23 of Representation of the People Act
- 1950 prohibits amendment of electoral roll after last date for nominations
- Election petition can be dismissed under Order 7 Rule 11 CPC for want of material facts
- Non-compliance with Act must be shown to have materially affected the returned candidate's election
- Entries in electoral roll can only be challenged under machinery of 1950 Act
- Publication of supplementary list is a ministerial act
