Election petition over affidavit suppression cannot be rejected at outset: Bombay HC

The Bombay High Court has ruled that an election petition alleging non-disclosure of information in the election affidavit cannot be dismissed at the threshold if it raises issues that require a trial. The high court dismissed an application by a Shiv Sena MLA seeking rejection of a petition filed by the defeated candidate from Sangamner constituency.

Justice Kishore C. Sant of the Bombay High Court dismissed an application filed by a returned candidate, a Shiv Sena MLA, seeking rejection of an election petition under Order VII Rule 11 of the Civil Procedure Code read with Section 86 of the Representation of the People Act, 1951.

The election petition was filed by the defeated candidate from Sangamner constituency. The petitioner alleged that the returned candidate had suppressed his association as a partner in a firm named “Nilkamal” and had not disclosed liabilities, including tax dues, in the Form 26 affidavit. The petitioner contended that this non-disclosure amounted to a corrupt practice.

The court examined whether the election petition disclosed sufficient facts to warrant a trial. It noted that the petitioner had made specific averments about the suppression of the partnership and the non-disclosure of tax liabilities. These averments were supported by material obtained from the website of the Goods and Services Tax department. The court also noted that the petition stated that the candidate had declared “nil” government dues despite alleged outstanding liabilities.

The court observed that the defence of the returned candidate — including the claim that the firm had been dissolved — could not be examined at the stage of deciding an application for rejection of the petition. Such issues, the court said, are matters of evidence to be tested during trial. The court found that the petition contained enough averments to bring the case within the scope of Section 100(1)(b) and related provisions of the Act.

“The nomination form filled in by the respondent No. 1 was not properly filled in, and such form is accepted. Had the liabilities of the Nilkamal firm been shown in the nomination, there are chances that the voters would have noticed the same. In that case, there was a possibility of the election being materially affected,” the court observed.

While the court did not find a prima-facie case on certain allegations, such as undue influence under Section 101(b), it held that the presence of triable issues on other grounds was sufficient for the petition to proceed. The court reiterated that an election petition cannot be rejected in part and must proceed if it discloses any triable issue.

“Since the plaint cannot be rejected partly, there is no question of rejecting the petition at the threshold as some triable issue has been made out. There are sufficient averments in the petition to show that the petition requires a trial,” the court observed.

The court dismissed the application seeking rejection of the election petition and directed that the matter proceed for further consideration.