Nitin Gadkari Election Challenge: SC Issues Notice On Plea Against Bombay HC Decision To Strike Out Allegations In Election Petition

A Division Bench of the Supreme Court of India on Friday (September 16) issued notice on a special leave petition challenging the decision of the Bombay High Court to strike down a slew of submissions and allegations made in an election petition filed against Union Minister Nitin Jairam Gadkari.

The Nagpur Bench of the High Court, while refusing to quash the election petition disputing Gadkari's election to the Lok Sabha from the Nagpur constituency in 2019, had partly allowed an application under Order VI Rule 16 of the Code of Civil Procedure, 1908 and struck down the pleadings raised in several paragraphs of the petition with respect to the income earned by the family members of the Minister and land owned by them. There were also allegations regarding the expenditure made during the 2019 General Elections. Aggrieved by the HC decision, the petitioner, one Mohammed Nafis Khan, approached the apex court.

Background

Nafis Khan, an elector from the Nagpur constituency, had accused Gadkari, the Minister for Road Transport and Highways in the incumbent Bharatiya Janata Party-led Government, of submitting false information in his nomination form and election affidavit. Khan had challenged the Gadkari's election the 17^th Lok Sabha under Sections 100(1)(b) and Sub-clauses (i), (ii), and (iii) of Section 100(1)(d) of the Representation of the People Act, 1951 and urged the High Court to set it aside as void.

A Single Judge Bench of Justice A.S. Chandurkar, observed that two points in Khan's prayer with regard to the land solely owned by Gadkari and the declaration of agriculture as his source of income had "disclosed material facts and necessary cause of action". Therefore, he refused to quash the election petition. The Court held –

"As a result of this adjudication the prayer made in Civil Application No. 12/2021 seeking rejection of the election petition cannot be granted."

However, Justice Chandurkar proceeded to strike down other prayers in the petition, partly allowing an application moved by Gadkari under Order VI Rule 16 of the Code of Civil Procedure, 1908. This provision permits the court, at any stage of the proceedings, to strike out any matter in the pleading which may be "unnecessary, scandalous, frivolous, vexatious or prejudicial or otherwise appears to be an abuse of the process of the court". The Court held –

"The election petition consequently would proceed for trial on the basis of the averments that remain after the paragraphs as directed to be struck off are so struck off," said the court.

On September 16, a Division Bench of the Supreme Court comprising Justices A.S. Bopanna and P.S. Narasimha issued notice on the limited point of whether the pleadings were liable to be purged by the Bombay High Court.

Grounds of Challenge

The major thrusts of the petitioner's challenge can be broadly divided into seven contentions, namely:

• That the High Court had deviated from the settled principles of law as to the striking of pleadings under Order VI Rule 16.
• That the pleadings in Paragraph 7(i) were wrongly struck off. It was submitted by the petitioner in this paragraph that the Minister had misrepresented the ownership of a certain property in his election affidavit. The petitioner claimed that Gadkari was the individual owner but had claimed that it was a joint family property.
• Pleadings in paragraph 7(iv) were wrongly struck off. It was submitted by the petitioner in this paragraph that Gadkari had submitted insufficient and misleading information about the land owned by his spouse.
• Pleadings in paragraphs 7(v) to 7(vii) were wrongly struck off. It was submitted by the petitioner in these paragraphs that Gadkari had understated his income for the purposes of Income Tax returns.
• Pleadings in paragraph 7 (viii) regarding the income earned by Gadkari's spouse from a Turmeric Boiler she owned, and the concluding part of Paragraph 7 were wrongly struck off.
• Pleadings in paragraphs 23 and 24 regarding violations and non-compliance with the Election Manual 2019 were wrongly struck off.
• Pleadings in paragraphs 27, 28 and 30 regarding, inter alia, publication of advertisements, were wrongly struck off. It was also submitted by the petitioner in these paragraphs that Gadkari had shown incorrect expenses and excess expenditure.

The crux of the petitioner's contention before the Supreme Court is that the High Court erred by striking out relevant pleadings when he had not offended the rules of pleadings and had raised arguable issues. It is also urged that the power to strike out pleadings was extraordinary and must be exercised by the court sparingly and "with extreme care, caution and circumspection". On this issue, reliance has been placed on the decision of the Supreme Court in Sathi Vijay Kumar v. Tota Singh [(2006) 13 SCC 353].

On whether the pleadings that were purged by the High Court had disclosed a "reasonable cause of action", the petitioner relying on Mohan Rawale v. Damodar Tatyaba [(1994) 2 SCC 392], urged that as long as the claim disclosed some cause of action or raised some questions fit to be decided by a Judge, the mere fact that the case was weak and not likely to succeed was no ground for striking it out. Further, the petitioner claimed that the Single Judge had failed to read the pleadings as a whole to ascertain the true import of the allegations, and as such, had deviated from settled principles.

The petitioner has also prayed for interim relief in the form of an ad-interim ex-parte stay on the final judgement and order of the Bombay High Court passed in the election petition on February 26, 2021.