1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION PETITION NO.12 OF 2009 Ratnakar K. Kamath .. Petitioner Vs. Sanjay Brijkishorlal Nirupam .. Respondent Mr.B.D.Joshi i/b Mr.U.G. Deshpande for the petitioner None for the respondent CORAM : S.C.Dharmadhikari, J. DATE : August 30, 2010 P.C. : 1. This Election Petition seeks to set aside the result of the parliamentary elections from the Mumbai North Constituency for the year 2009 wherein respondent no.4 was declared as elected. 2. The matter was placed today for directions so as to enable the petitioner s advocate to file an affidavit of service stating the manner ’ in which the returned candidate respondent no.4 has been served. 3. Respondent no.4 is declared elected to the Lok Sabha from the said constituency in the results declared on 16.05.2009. His election is challenged on the ground of corrupt practice allegedly committed by 2 him under section 123 (3) of the Representations of People Act, 1951. 4. There were in all five election petitions which were placed on board for directions from time to time. Except for this election petition, in the four other petitions, the returned candidates filed applications under Order VI Rule 16 read with Order VII Rule 11(d) of the Civil Procedure Code praying that the election petitions did not disclose any cause of action in as much as if the only allegation of corrupt practice as leveled in the petition is perused, the same does not constitute the material fact on which the election can be set aside. If that allegation of corrupt practice is excluded from consideration, then, nothing survives in the petitions and they be dismissed for want of any cause of action. 5. Those applications were extensively argued before me and by my Judgment and order dated 24.08.2010 in Election Petition Nos.11, 13, 14 and 15 of 2009, the said Election Petitions were dismissed for want of cause of action. 6. The main plank of the petitioner s case in those petitions as well as ’ in this petition is that the returned candidate contested as nominee of the Indian National Congress (INC). As candidate of this political party, he utilized the manifesto of the said party wherein allegedly an appeal was made to the voters to vote for the said party because of 3 its program and policies as part of upliftment of the minority communities especially the Muslims. According to those petitioners as well as the present petitioner, the returned candidates did not disassociate themselves with these programs and policies and contested the elections on the basis of the same. Therefore, their election deserves to be set aside. 7. In my order I held that this is no allegation of corrupt practice within the meaning of section 123 (3) of the Representations of People Act, 1951. The allegation of corrupt practice within this provision would mean that the candidates religion or that of the rival has been put in issue and the voters are called upon to vote in favour of the said candidate on account of his religion or that the voters should ‘ ’ refrain from voting for the rival candidate on account of his ‘ religion . The words his religion are crucial and by merely stating ’ ‘ ’ that manifesto of the political party sets out the above program and policies and that is used as part of the campaigning by the political party, will not mean that any appeal was made to vote on the basis of the candidates religion. 8. When this election petition was placed before me and the attention of Mr.Joshi was invited to this judgment, so also the allegations in the instant election petition, Mr.Joshi could not point out any distinguishing feature. In other words, he was unable to show as to 4 to how the said order and judgment will not be applicable to the facts of the present case and the instant petition. It is well settled that the power under Order VII Rule 11 or under Order VI Rule 16 can be exercised by the court on its own even without any application because the petitions which do not disclose any cause of action should not detain the court and the precious judicial time should not be wasted in trying them. In such circumstances and for the reasons disclosed in the order in the companion election petitions and when the facts are identical, I do not see how the power conferred upon me cannot be exercised suo motu in this case. Accordingly, by exercising my powers without any application but suo motu, this Election Petition is dismissed as devoid of any cause of action for the same reasons that persuaded me to dismiss the other election petitions. However, there shall be no order as to costs. ( S.C.Dharmadhikari, J. )