Bombay High Court Upholds Election Of Shiv Sena Shinde Faction's Ravindra Waikar To Lok Sabha From Mumbai

The Bombay High Court on Thursday dismissed the election petition filed by Amol Kirtikar, a candidate from Uddhav Thackeray faction, who had challenged the election of Ravindra Waikar, a leader from Eknath Shinde faction, to the 18th Lok Sabha from Mumbai North-West constituency.

Single-judge Justice Sandeep Marne held that Kirtikar failed to establish how the alleged acts on part of the Returning Officer (RO), or Waikar 'materially affected' the outcome of the elections. 

Kirtikar had sought a declaration against the election of Waikar from the Mumbai North-West Constituency and instead urged the court to declare him as a winning candidate.

Kirtikar, who lost by a mere margin of 48 votes had alleged several lapses on part of the Election Officers such as not permitting him to file an application for recounting of votes, permitting use of mobile phones in the counting area, allowing impersonators to cast 333 votes etc.

Dealing with the contentions, Justice Marne noted that one of the very first grouse of Kirtikar was that the Returning Officer did not allow his counting agents to enter the counting room.

"There are no pleadings as to which persons were appointed as Petitioner's counting agents under Section 47 of the RP Act and at which particular tables or computers they were not permitted to sit. The allegations are thus clearly vague and do not really disclose a cause of action for making out a ground under Section 100(1)(d)(iii) or (iv) of the RP Act," the judge said.

As far as the contention that Kirtikar's application for recounting was rejected wrongly by the RO, the judge pointed out that as per the Conduct of Election Rules, 1961, a candidate or his counting agents must make a written application for recounting of votes stating the grounds for the same and this exercise must be done before the RO declares the final results. 

"The application for recount of votes must be made during the time gap between announcement made by the Returning Officer under Rule 63 and declaration of result of election under Rule 64 of the Rules, 1961. In the present case however, Petitioner thought of filing application for recount only after result of the election was declared," the judge said. 

For the contention of use of mobile phone by agents of Waikar, Justice Marne said, "Apart from the fact that the allegations are vague, there is no positive statement in the Election Petition that use of mobile phone by the Encore Operator Mr. Dinesh Gurav has materially affected result of election of the Returned Candidate."

Further, the bench noted from the pleadings that while Kirtikar alleged that 333 tender votes (impersonators) that were considered in the counting was illegal, however, the UBT leader had himself pleaded in his petition the fact that the RO did not count 120 tender votes out of the total 333. This, the judge said was 'contradictory.'

"In one breath he suggests irregularity in non-counting of 120 missing tender votes and in the next breath, he contends that all the 333 tendered votes are void and could not have been received. The Petitioner thus is not sure as to whether the tendered votes ought to be counted or not. He has merely raised a surmise by highlighting mismatch between the total number of tender votes," the judge said. 

The judge finally concluded that Kirtikar had thoroughly failed to raise necessary pleadings disclosing cause of action for setting aside Waikar's election under any of the grounds enumerated in Section 100 of the Representation of Peoples Act. He said that the UBT leader failed to make out any case against the Shinde faction leader and therefore, dismissed the petition.

Case Title: Amol Kirtikar vs Ravindra Waikar (Election Petition 6 of 2024)

Citation: 2024 LiveLaw (Bom) 647

Counsel for Petitioner: Advocates Pradeep Patil, Parvinchand Gole, Nimish Parakh and Amit Karande

Counsel for Respondent: Senior Advocate Anil Sakhare along with Advocates Utsav Trivedi, Shyamsunder Jadhav, Kavita Dhanuka, Vishal Acharya, Rohan Mirpurey, Savita Suryavanshi, Bhavya Shah and Chirag Shah 

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