Bombay HC Declines To Reject Petition Challenging Shiv Sena MLA's Election Over Non-Disclosure Of Material Facts In Poll Affidavit

The Bombay High Court has held that an election petition alleging non-disclosure of material information in the election affidavit cannot be rejected at the threshold if it discloses triable issues requiring adjudication. The Court observed that where specific averments indicate suppression of material facts affecting the validity of nomination, the petition must proceed to trial.

Justice Kishore C. Sant was hearing an application filed by the returned candidate, a Shiv Sena MLA, seeking rejection of the election petition under Order VII Rule 11 CPC read with Section 86 of the Representation of the People Act, 1951. The election petition was filed by the defeated candidate challenging the election from Sangamner constituency on the ground of non-disclosure in the Form 26 affidavit. The election petitioner alleged that the returned candidate had suppressed his association as a partner in a firm named “Nilkamal” and failed to disclose liabilities, including tax dues. It was contended that such non-disclosure amounted to a corrupt practice.

The Court examined whether the election petition, as filed, disclosed sufficient material facts to warrant trial. It noted that the petitioner had specifically alleged suppression of partnership in the firm Nilkamal and non-disclosure of tax liabilities, supported by material obtained from the GST Department website. It further noted that the petition contained averments that the candidate had declared “nil” government dues despite alleged outstanding liabilities.

The Court held 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 observed, are matters of evidence to be tested during trial. The Court noted that the petition contained sufficient averments to bring the case within the ambit 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 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 to proceed with the petition. It 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.

Holding that the petition disclosed a cause of action and raised issues requiring adjudication, the Court dismissed the application seeking rejection of the election petition and directed that the matter proceed for further consideration.

Case Title: Amol Dhondiba Khatal v. Vijay Alias Balasaheb Bhausaheb Thorat [Application in Election Petition No. 162 of 2025 in Election Petition No. 02 of 2025]

Citation: 2026 LiveLaw (Bom) 155

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