Meenakshi Prabhakar Patil v. Pravin Madhukar Thakur

Mr.B.D.Joshi a/w. Mr.C.G.Gavnekar i/b G.S.Hiranandani for the Applicant/Orig. Respondent. Mr.Pramod N. Patil with Mr.Laxman Deshmukh for the Respondent/Original Petitioner in the application. .......... CORAM : S.J. VAZIFDAR, J. DATE : 10TH AUGUST 2011. P.C. 1 The respondent has filed this application to strike out paragraphs 5 to 23 and 25(a) to (k) of the Election Petition on the ground that they do not disclosed any cause of action. The respondent has also sought a dismissal of the Election Petition under order VII, Rule 11 of the Civil Procedure Code on the ground that no triable issue remains to be tried after the deletion of the above paragraphs. - 2 -

22.aep.7.2011 ep.21.09 2 The petition was filed on 5th December 2009. The issues were framed on 25th October 2010. One of the ground stated in the petition is that there was a non-disclosure by the respondent of information regarding the property in the form prescribed by the order of the Election Commission of India. As a result thereof, the respondent’s election is liable to be declared null and void under Section 100(1)(d)(iv) of the Representation of the Peoples Act, 1951. 3 As stated above, the issues were framed on 25th October 2010. It is clarified by the said order itself that it will be open to the respondent to contend that the order of the Election Commission requiring the disclosure of assets is not mandatory and its alleged non-compliance would not render the respondent’s nomination form invalid. Thus, the Election Petition thereafter proceeded on several occasions. The evidence of production witnesses is over. The present application is taken out in the midst of the evidence. The application is also based on the judgments which were delivered even before the Election Petition was filed. 4 I will presume as contended on behalf of the respondent that there is a conflict of judgments of various Single Judges of this Court on this issue namely as to whether the disclosure of assets is mandatory or not in view - 3 -

22.aep.7.2011 ep.21.09 of the order of the Election Commission and an order and judgment of the Supreme Court dated 28th September 2007 in Civil Appeal No.4261 of 2007 in Kisan Shankar Kathore V/s.Arun Dattatraya Sawant. 5 Mr.Joshi submitted that whether the judgment in favour of the respondent holding that the provision is not mandatory has attained finality. The judgment of the learned Judge hold the provisions to be mandatory is stayed by an order dated 21st September 2007of the Supreme Court. The judgment holding that the provision is mandatory dated 6th August 2007 is delivered in the case of Arun Dattatraya Sawant V/s.Kisan Shankar Kathore in Election Petition No.10 of 204. Mr.Joshi relies upon the order of the Supreme Court dated 21st September 2007 which has listed the matter on 20th September 2007and granted a stay of the impugned order till then. By a further order dated 28th September 2007, the Supreme Court admitted the first appeal, continued the interim stay and listed the matter for hearing. By an order dated 23rd April 2009, the Supreme Court has adjourned the hearing of the case till the decision of the larger Bench of the Supreme Court in another matter in People’s Union for Civil Liberties & Anr. Vs. Union of India & Anr.. 6 It is contended therefore, that the order and judgment of the learned Judge of this Court has been stayed and cannot be considered at all. - 4 -

22.aep.7.2011 ep.21.09 7 Prima facie, this submission is not well founded at least for the purpose of this application for a summary dismissal of the election petition. This is a question of law which requires to be determined. The determination thereof will involve a consideration of the doctrine of precedent. The Supreme Court has stayed the order in Election Petition No.10 of 2004. The Supreme court has not stayed the judgment. 8 In the circumstances, I am unable to hold that there is nothing required to be considered in this Election Petition. The application is, therefore, dismissed. -