Based On Incomplete Cause Of Action: Bombay High Court Rejects Plea Challenging Election Of Nitin Gadkari To Lok Sabha
The Petitioner-Suraj Balram Mishra approached the Nagpur Bench, seeking direction to the authorities to conduct fresh and fair enquiry regarding complaint given by him and other candidates.
The Bombay High Court has dismissed an Election Petition challenging the Election of the Union Minister Nitin Gadkari (Minister of Road Transport and Highways, Government of India) to the Lok Sabha from the Nagpur Parliamentary Constituency.
The Petitioner-Suraj Balram Mishra approached the Nagpur Bench, seeking direction to the authorities to conduct fresh and fair enquiry regarding complaint given by him and other candidates.
A Single Bench of Justice Urmila Joshi-Phalke observed, “Thus, seeing from any angle, it become clear that in absence of pleadings as to the “material facts” to the extent of that the election of respondent No.5 - Nitin Jairam Gadkari a returned candidate was materially affected, it would have to be held that the election petition is based on an incomplete cause of action.”
Petitioner Suraj Balram Mishra appeared in-person while Senior Advocate S.V. Manohar represented the Respondent.
Facts of the Case
The Petitioner challenged the election of Respondent-Nitin Gadkari on the ground that the Bharatiya Janta Party (BJP) and its workers have violated the Model Code of Conduct. It was alleged that a software was created and slips were distributed to voters having photographs, name of Gadkari, and symbol of the BJP. It was further alleged that machines were given to the representatives of all booths of Nagpur of which the main function was to print the voters’ details having photos, name of Gadkari, and BJP symbol.
As per the Petitioner, Gadkari allegedly by means of corrupt practices, violated the Model Code of Conduct. Various complaints including the complaint of the Petitioner were lodged as to the alleged violation. As no cognizance was taken regarding the same, the Petitioner approached the High Court. The Petitioner sought to declare the election of Gadkari as illegal.
Reasoning
The High Court in the above regard, noted, “Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalize legitimate canvassing or appeals to reason and judgment 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 our democratic process.”
The Court said that nowhere it reflects that there was any direct or indirect interference or attempt to interfere on the part of the candidate.
“Thus, in view of the law as laid down in the case of Ram Sukh vs. Dinesh Aggarwal supra and in view of the failure on the part of the petitioner to aver the “material facts” and to aver the contention as to election of returned candidate was materially affected insofar as it is concerned, the election petition is liable to be summarily dismissed without trial”, it further observed.
The Court added that no useful purpose would be served by permitting the Petitioner to proceed for trial in absence of any pleadings in the Election Petition that the election of the returned candidate was required to be declared void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951 (RP Act).
“In absence of such basic averments, it would also not be permissible for the election petitioner to lead any evidence in that regard. Therefore, the election petition is liable to be dismissed under the provisions of Order VII Rule 11(a) of the CPC as the complete cause of action is absent for declaring the election of the returned candidate to be void under Section 100(1)(d)(iv) of the Act”, it concluded.
The Court also said that in terms of Section 119 of the RP Act, the returned candidate is entitled to cost incurred by him in contesting the Election Petition and hence, directed that the costs be paid by adopting the course prescribed by Section 121 of the Act.
Accordingly, the High Court dismissed the Election Petition and imposed cost on the Petitioner.
Cause Title- Suraj Balram Mishra v. Chief Executive Officer and Officer of Code of Conduct & Anr. (Neutral Citation: 2025:BHC-NAG:2792-DB)
Appearance:
Petitioner: In-person
Respondents: Senior Advocate S.V. Manohar and Advocate Atharva Manohar.
