The Bombay High Court, through a judgment delivered by a Single Bench comprising Justice Sandeep V. Marne, dismissed the election petition filed by Amol Gajanan Kirtikar against Ravindra Dattaram Waikar (Election Petition No. 6 of 2024). The petition sought to challenge the election of Waikar, a candidate from the Eknath Shinde faction, to the 18th Lok Sabha from the Mumbai North-West constituency. The petitioner, Kirtikar, contested the election as a member of the Uddhav Thackeray faction of the Shiv Sena. The petition was adjudicated under the provisions of the Representation of Peoples Act, 1951 (RP Act).

The petition was predicated on several grounds, including allegations of procedural irregularities committed by the Returning Officer (RO) and unauthorized actions by agents of the respondent. Kirtikar claimed that these lapses "materially affected" the election result, wherein he lost by a margin of 48 votes. However, the Court, after an exhaustive review of the pleadings and evidence, ruled that the petitioner failed to establish the materiality of the alleged irregularities.

Addressing the primary allegations, Justice Marne observed that the petition lacked a concise statement of material facts necessary to establish a case under Section 100(1)(d)(iii) and (iv) of the RP Act. The Court noted, "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."

The petitioner further alleged that his request for a recount was unlawfully rejected by the RO. The Court scrutinized the timeline of events and held that Kirtikar's application for recounting was filed only after the election results were declared. Justice Marne stated, "The application for recount of votes must be made during the time gap between the announcement made by the Returning Officer under Rule 63 and the 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 Court also examined the claim regarding the alleged use of mobile phones in the counting area, which the petitioner contended facilitated irregularities. Justice Marne opined that the allegations were devoid of any substantive evidence demonstrating a material impact on the outcome of the election. The judgment noted, "There is no positive statement in the Election Petition that use of mobile phone by the Encore Operator Mr. Dinesh Gurav has materially affected the result of election of the Returned Candidate."

In addressing the issue of tendered votes, the Court highlighted inconsistencies in the petitioner's submissions. While alleging that 333 votes cast by impersonators were improperly considered, the petitioner simultaneously argued that 120 tendered votes were excluded from the count. The Court remarked, "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."

Justice Marne observed the jurisprudence surrounding election petitions, emphasizing the necessity of strict adherence to procedural requirements and the pleading of material facts. The Court referred to the statutory framework under Sections 83(1)(a) and 100(1)(d) of the RP Act, observing that the petitioner’s failure to plead a clear and actionable case rendered the petition untenable.

The Court ultimately dismissed the petition, stating that Kirtikar failed to discharge the burden of proving that the alleged irregularities materially affected the election outcome. The judgment concluded, "The Election Petitioner has 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."

Case Title: Amol Gajanan Kirtikar v. Ravindra Dattaram Waikar and Others
Case Number: Election Petition No. 6 of 2024
Bench: Justice Sandeep V. Marne