Bombay High Court Dismisses Plea Challenging Election Of Shiv Sena (UBT) Leader Anil Desai To 18th Lok Sabha

The Bombay High Court recently dismissed a petition challenging the election of Shiv Sena (Uddhav Thackeray) faction's Anil Desai to the 18th Lok Sabha from Mumbai South-Central constituency, observing that the petition failed to establish the 'material impact' on the elections that concluded in June this year.

Single-Judge Justice Sharmila Deshmukh noted that the only ground on which the petitioner Mahendra Bhhingardive challenged Desai's election was that Desai, while annexing the mandatory affidavit to the nomination form, left several 'blank spaces' which, according to the petitioner, were mandatory to be filled. This act of Desai, the petitioner claimed was malpractice as he did not disclose all the information about himself.

"There is not even a whisper in the petition as to the manner in which the improper acceptance of nomination has materially affected the election. A pleading in that respect is essential to disclose a cause of action for questioning the election. To constitute a cause of action there has to be satisfaction of twin requirement - firstly, there has been an improper acceptance of nomination papers and non compliance with the Constitution or the statutory provisions or Rules or orders and secondly that the same has resulted in the election results being materially affected. For showing improper acceptance of the nomination papers, there has to be a pleading of material facts in the Petition to demonstrate that the concerned candidates nomination was liable to be rejected by the Returning Officer. In the present case, the Petition is completely silent on both the aspects," the judge said in her October 15 order.

De-hors any pleading on material facts, the petition does not disclose any cause of action, the bench pointed out.

It is evident that the whole purpose of filing an affidavit is to make known to the electorate, the criminal antecedents, assets and liabilities as well as the educational qualification of a contesting candidate so as to enable the voters to make an informed decision, the judge noted.

"It is not the case of the Petitioner that by reason of the blanks / non-supply of information, there has been suppression of any information or any wrong information has been put in public domain. In the present case, the Petition does not have a single averment as to how the alleged lapses/defects are of substantial character and has resulted in violation of fundamental right of the citizen to know the true facts and information of the contesting candidate. It was necessary to plead the consequence of alleged defects impacting the information which is required to be put in public domain by the contesting candidate," the judge opined.

To attract the consequence of rejection of the nomination paper by the Returning Officer, the defects alleged in the Affidavit have to be shown to be of substantial character by necessary pleadings in that respect, the judge said.

"In the present case, only the alleged defects are set out in tabular form without any supporting pleading to substantiate that the alleged defects are of substantial character for it is not each and every lapse or defect which will lead to rejection of nomination. I am of the opinion that there are no defects in Affidavit (Form 26), even assuming them to be defects, to entail the rejection of nomination papers, the defects have to be of a substantial character," the bench held.

With these observations, the bench dismissed the election petition.

Appearance:

Mahendra Bhingardive appeared as party-in person.

Senior Advocate Devdatt Kamat along with Advocates Ankit Lohia, Rubin Vakil, Rishit Vimaldalal, Harsh Pandey, Manish Doshi, Heena T, Isha Thakur and Gunjan Doiphode instructed by Vimaldalal & Co. appeared for Anil Desai

Advocates Abhijit Kulkarni, Gaurav Shahane and Shreyas Zarkar represented the Election Commission of India.

Case Title: Anil Desai vs Mahendra Bhingardive (Application [Lodging] No. 29382 of 2024 in Election Petition 1 of 2024)

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