spb/ 30-11Aep5.6.12.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO. 05 OF 2012
IN
ELECTION PETITION NO. 01 OF 2012
Jayawantrao Pundlikrao Jadhav ... Applicant
Shivaji Laxman Sahane ... Petitioner.
V/s.
Election Commissioner and Ors. ... Respondents.
---
WITH
APPLICATION NO. 06 OF 2012
IN
ELECTION PETITION NO. 01 OF 2012
Shivaji Laxman Sahane ... Applicant
Shivaji Laxman Sahane ... Petitioner.
V/s.
Election Commissioner and Ors. ... Respondents.
---
Mr. S.G.Aney, Sr. Counsel with Mr. Vijay Nair i/by Prashant P.
Kulkarni for the Applicant in Application No.5/2012.
Mr. Mahesh Jethmalani a/with Mr. A.V. Anturkar, with Mr.
Shrishailya Deshmukh, Chaitra Pawar, Praveen Gole, S.
Chaugule for the Petitioner and Applicant in Application No.
6/2012 as well as for Respondent/Org.Petitioner in Application
No. 05/2012.
Mr. Pradeep Rajgopal for the Respondent Nos. 1 to 5 in
Application Nos. 5 & 6 of 2012 and for the Applicants in
Application No. 7 of 2012.
---
::: Downloaded on - 09/06/2013 19:27:07 :::
spb/ 30-11Aep5.6.12.sxw
CORAM : ANOOP V. MOHTA, J.
RESERVED ON : 22 NOVEMBER, 2012
PRONOUNCED ON : 30 NOVEMBER, 2012
P.C. :
Both these Applications can be disposed of by this common order as basic facts and circumstances in these applications are interlinked and common.
2The present election petition is filed by the petitioner who, though got equal number of votes, lost the election in the process of drawing lots as contemplated under Rule 75 of the Conduct of Election Rules, 1961 (for short "Rules") and the Rules framed under the Representation of the People Act (for short, "RP Act".) 3 The main prayers of the election petition are to hold and declare that the election of respondent no. 6 (returned candidate) to the legislative council of the State of Maharashtra in the biennial election from the Nashik Local Authority Constituency for the year 2012 illegal and null and void and further prayed to quashed and set aside the said election. A prayer is also made to declare the Petitioner to be elected in the election. All other related prayers are also sought, basically by challenging the process of drawing of lots, as null and void.
4 This Court on 23rd July, 2012 admitted the petition and issued notice to all the respondents for final disposal which was made returnable on 03.09.2012 as there was no basic ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw objection raised by the office. On 23rd October, 2012, the matter was listed for hearing on applications in question. The matter was closed for orders on 30 th November, 2012. Heard the learned senior counsel for the parties. They have read and referred the pleadings as well as the documents placed on record by the parties.
5 Application No. 05/2012 is taken out by theApplicant Jaywantrao Pundlikrao Jadhav (the applicant) wherein he prayed as under :
"(a) that Election Petition No.1 of 2012 be dismissed under Section 86 for non-compliance of inter-alia the provisions of Section 82 of the Representation of People Act, 1951;
(b) for such further and other reliefs as the nature and circumstances of the case may require;"6 Application No. 6 of 2012 is taken out by the
Petitioner - Shir Shivaji Laxman Sahane, (the petitioner) wherein he prayed as under :
"(a) that the Applicant/Petitioner be allowed to amend the Election Petition to the extent of correcting the typographical error in name of Respondent No. 6 as "Jaywantrao Pundlikrao Jadhav" instead of "Jayant Pundlik Jadhav".
(b) for such further and other reliefs which in the facts and circumstances of the case are required;"
7 The relevant Sections of RP Act are 82(a) & 86(1) :
"82. Parties to the petition. --A petitioner shall join as respondents to his petition -::: Downloaded on - 09/06/2013 19:27:07 :::
spb/ 30-11Aep5.6.12.sxw
(a) where the petitioner, in addition to
claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and ...."
86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
8 The mandate of the above sections are well settled and recognized for any election petition. The compliance so referred goes to the root of the matter but at the same time, if there are any defects in such election petition and if those are curable and/or minor in nature, the court in a given case may consider and permit the parties to remove the defects. The court, therefore, ultimately needs to take into consideration the facts and circumstances apart from the pleadings and documents on record in any such matters.
9 The challenge in the present election petition, as recorded above, is not on the ground of corrupt practice and/ or such related act but the alleged process of drawing of lots as per the permissible rules. Respondent No. 6 though served by a private notice, not filed Vakalatnama and/or not shown appearance in the matter. This court has granted hamdast on 23rd July, 2012 while admitting the matter. The Petitioner has filed affidavit of service of one Ravindra Narhari Salve who, ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw as a legal adviser of the Petitioner, has averred that he personally served notice alongwith the copy of the petition with the annexures on 04.08.2012 at the residence address of respondent No. 6, as mentioned in the cause title, by hand delivery and obtained the acknowledgment. The service of notice was accepted by the brother of respondent no. 6 - Mr. Kalyanrao Pundlik Jadhav. The acknowledgment is filed alongwith the affidavit.
10The Petitioner's Advocate's clerk one Sandesh Desai's affidavit dated 15th October, 2012 is also on record.
He averred that on 26.9.2012 he personally served copy of the Application with all annexures to the Respondent No. 6's Advocate by hand delivery and obtained acknowledgment.
Similar averments are made with respect to the service so made on other respondents.
11 Another affidavit of service of Mr. Praveen B. Gole, who is also Advocate of the Petitioner averred that on 3.8.2012, he personally served the notice together with the copy of the election petition with all annexures thereto at the inward section at the office address of respondent no.2 mentioned in the cause title by hand delivery and obtained the acknowledgement. Ravindra Narhari Salve, who is also legal advisor of the petitioner filed the affidavit of service on respondent nos. 3,4 & 5.
12 It is relevant to note the rules framed by the High Court of Judicature at Bombay in regard to the election ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw petitions under the RP Act, 1951 at Appendix II of the Bombay High Court (Original Side) Rules. The relevant Rules 9 and 10 reads as under :
"9. Immediately after the time fixed for the removal of objections, the petition shall be placed before the Judge for such orders as may be required to be passed under section 86 of the Act. It the petition is not dismissed under section 86(1) of the Act, a summons, on the direction of the Judge, shall be issued to the respondents to appear before the High Court on a fixed date and answer the claim or claims made in the petition. Such date shall not be earlier than three weeks from the date of the issue of the summons. The summons shall be for written statement and settlement of issues and shall be served on the respondents through the sheriff in Greater Bombay, and through the District Judges in the rest of the State in the manner provided for the service of summons. The Prothonotary and Senior Master and the District Judges will make their best endeavour to serve the summons on the respondents and make a return of the service of the summons with the greatest expedition.
10 In addition to the service of summons to be effected as aforesaid, a summons shall also be sent to the respondents to the address given by the petitioner by registered post prepaid for acknowledgment. The petitioner shall furnish extra copies of the petition to be served along with the summons by registered post. No extra process fees except postal charges will be recovered.
13 It is relevant to note in this matter that Application No.05/2012 is taken out by the applicant - Jaywantrao Pundlikrao Jadhav who averred in the affidavit in support that :
"(1) I am the returned candidate in the election ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw held for Maharashtra State Legislative Council from Nashik Local Authorities Constituency in the biennial election for the year 2012; I have not been made a party Respondent. The Election Petition was served at my address stating to be service on Respondent No.6 one Jayant Pundlik Jadhav. The said service was effected through the office of this Hon'ble Court and my brother accepted the same since it was the service from the Hon'ble High Court.
(3)I say that there are many Jayant Jadhav in the district of Nashik. If necessary, I am willing to furnish details of the same. The present Election Petition appears to have been filed in a very careless and casual manner. The Petitioner inspite of having my name as per the declaration of results which is at Exhibit -1 and further the return of elections as per Rule 84(i)(b) being the return of elections which is annexed at Exhibit-J to the Petition, which clearly, categorically and specifically sets out my name has choosen to file the present petition naming one jayant pundalik jadhav as Respondent no.6. In the aforesaid circumstances, I say that the Petitioner could not have joined any other person as a party Respondent, otherwise than as provided under Section 82 of the said Act. In view of myself, i.e. the present Applicant not being joined as party Respondent, I am not dealing with the Petition on merits and reserve my right to address the Petition on merits as and when necessary.
(4) I submit that Mr. Jaywantrao Jadhav has been wrongly referred to as Mr. Jayant Jadhav by petitioner. Even ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw on a mere perusal of the voters list it will be clear that "Jayant" and Jaywant" are different names and hold a different identity.
It is pertinent to mention here that such an error in the Nomination form or any other application will entail rejection of the Nomination form and the Petitioner would also have in such an event of error contended to the returning officer, to reject the nomination on the day of scrutiny. A Nomination form can be rejected on the grounds of any error in filling up of name etc.. of nominated person and also of proposer and seconder. I crave leave to refer to the Record papers of mine inter-alia the school leaving certificate, certificate of board examinations, birth certificate, passport, which are essential identity proofs of government, showing my name as Jaywantrao Pundlikrao Jadhav".
14 The Petitioner in-reply clarified the position and reiterated in paragraphs 3 and 4 that : "(3) I deny each and every statement, contentions and allegations made in the present Application. I say that there is a typographical error in the name of Respondent No.6 and instead of the name "Jaywantrao Pundlikrao Jadhav" the name written as "Jayant Pundlik Jadhav". I say that on one hand the Applicant is claiming that he is not the person impleaded as Respondent No. 6 but on the other hand has accepted the letter dated 23 May 2012 at page 42 Exhibit-"B" in the Petition where the Respondent No. 4 (the then Returning Officer) has addressed him as "Jayant Pundlikrao Jadhav" and not "Jaywantrao Punlikrao Jadhav" as claimed by the Applicant herein. I say that by the letter dated 23 May 2012 the Returning Officer has ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw informed the method of voting in the Biennial Election and has provided the other details regarding the place of voting and other measures. I say that the Applicant has not refused to accept the said letter on the ground that his name is not written as "Jaywantrao". I say that thus the Applicant is blowing hot and cold in the same breath whereby at one place he is accepting the letter written by the Returning Officer to him in which his name is addresssed as "Jayant Pundlikrao Jadhav" and by the present Application he is seeking the dismissal of the election petition where the Petitioner has referred him as "Jayant Pundlik Jadhav".
(4) I say that on 4/8/2012 the representative of the Petitioner Advocate Mr. Ravindra Narhari Salve personally served the Notice issued by this Hon'ble court upon the Respondent No.6/Applicant. The said notice was accepted by one shri Kalyanrao Pundlikrao Jadhav, claiming to be the real brother of Respondent No.6/Applicant. The Applicant in the present application while claiming that he is not the person impleaded as Respondent No.6 in the Petition, has not denied his relationship with the recipient of the notice issued by this Hon'ble court. The Applicant has not made any averment that Shri Kalyanrao Pundlikrao Jadhav is not his real brother. On the other hand the Applicant is accepting the fact that the notice is served on correct address. It is not the case of the Applicant that there is some other Jayant Pundlik Jadhav residing on the same address mentioned in the notice. I say that this clearly shows that it is only typographical errors in the Petition in mentioning the name of the Respondent No.6/Applicant correctly."
::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw
15 At this juncture it is also necessary to note the
averments made by the petitioner in Application No. 6 of 2012 for amendment of the election petition which are that : "(3) I say that there is a typographical error in the name of Respondent No.6 and instead of the name "Jaywantrao Punlikrao Jadhav" the name written as "Jayant Pundlikrao Jadhav". I say that the same typographical error is also committed in the letter dated 23 May, 2012 at page 42 Exhibit B in the Petition where the Respondent No.4 (the then Returning Officer) has addressed him as "Jayant Pundlikrao Jadhav" and not "Jaywantrao Punlikrao Jadhav". I say that the Respondent No.6 has not applied to the Returning Officer to correct his name in the letter dated 23 May 2012 or has not refused to accept the said letter.
(4) On the other hand the Respondent No. 6 has accepted the fact that the notice is served on correct address and he is residing at the same address and he has nowhere made out any case that there is some other Jayant Pundlik Jadhav residing on the same address mentioned in the notice. I say that this clearly shows that it is only typographical errors in the Petition in mentioning the name of the Respondent No.6 correctly."
The Applicant denied these averments vide Affidavit dated 22 nd October, 2012 and opposed the amendment Application.
::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw
16 In election Petition preferred by the Petitioner, the
name of Respondent No. 6 in the array of parties is shown as under :
"6. Mr.Jayant Pundalik Jadhav, residing at Shivneri, Ramdas Swami Nagar, behind Gandhinagar, Nashik 422 006.
Applicant in Application No. 5, described himself by name as under :
ig"Jaywantrao Pundalikrao Jadhav, residing at Shivneri, Ramdas Swami Nagar, behind Gandhinagar, Nashik 422 006.
17 The Petitioner in the amendment Application re- described respondent No.6 as under :
"Jaywantrao Pundlikrao Jadhav" instead of "Jayant Pundlik Jadhav" .
18 It is settled that the election petition and/or challenge in election lies against the person/party who has won the election in question. The relevant averments in the petition as well as in supporting affidavit read with document at Exh."A", described the name of respondent No. 6 as under :
"Jadhav Jaywantrao Pundalikrao"
The document at Exh. "B" is letter dated 23rd May, 2012 issued by the Election Officer, which described the name of respondent no.6 as under :
::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw
"Shri Jayant Pundalikrao Jadhav",
Bhujbal Farm, Sunderban Colony,
Navin Nashik -422 009"
That letter dated 28.05.2012 was addressed to Shri Jadhav
Jayantrao Pundalikrao by the Returning Officer, Nasik Local Authorities Constituency Election-2012 regarding biennial election counting. It is relevant to note Form 23, referred to Rule 84(1)(a), which is declaration of the result of the election under section 66 of the RP Act, 1951. The relevant extract is as under :
"In pursuance of the provisions contained in section 66 of the Representation of the People Act, 1951, read with clause (a) of the sub-rule (1) of rule 84 of the Conduct of Elections Rules, 1961, I declare that -
(Name) Shri JADHAV JAYWANTRAO PUNDLIKRAO, (Address) SHIVNERI, RAMDAS SWAMI NAGAR, BEHIND GANDHI NAGAR, NASHIK 422006 sponsored by NATIONALIST CONGRESS PARTY has been duly elected to the seat in that House of a member retiring on 21.06.2012 on the expiration of the terms of office."
So also Form 23-B. These documents are not in dispute neither its contents. It means that the described name of elected candidate is "Shri Jadhav Jaywantrao Pundlikrao". The applicant is not denying the fact that he is elected candidate.
19 The learned counsel relied and referred the relevant paragraph/averments of the election petition and the supporting affidavits to the applications and contended that the whole ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw object as well as intention is to challenge the election of respondent No.6. No election petition can be filed against the person who has not contested and/or elected from the particular constituency. There is no material on record also to justify the case and/or the ground that someone else was elected and/or declared elected by the concerned official of the Election Commissioner at the relevant time. All the averments read with the prayer clauses referred respondent No.6. This itself means that such election petition is maintainable against Respondent No.6 only.
20 The Petitioner realizing the mistake as recorded above, therefore, taken out this application No. 6/2012 for amendment on 17 th September, 2012. The election petition was filed on 19th June, 2012 within the statutory period as prescribed under RP Act. The amendment application taken out by the Petitioner, therefore, objected by the learned senior counsel appearing for the applicant that it is not untainable as it is beyond statutory period of 45 days. Granting amendment itself means that it will go back to the filing of the Petition when in fact it was not filed within prescribed period. Therefore, contended to dismiss the election petition itself for non-joinder of necessary party. This submission, according to me, is unacceptable for the reason that the defect in describing the name of the party, in the present case respondent no.6, is nothing but a removable and/or minor and/or curable defect. I am not inclined to accept that it is a substantial and/or major defect and/or incurable defect and, therefore, the present election petition so filed must be treated as election petition ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw without joining the necessary parties, i.e. the person/ candidate who has first won the election. This submission itself is contradictory and inconsistent basically at the instance of the applicant in view of admitted position on record. There is no denial whatsoever at any pointing of time that he is not the person, who never won the election and/or never participated in the election. The relevant averments as well as the documents on record show that the applicant actually participated and contested the election. The election officer declared and confirmed the documents representing the name of the respondent No. 6 as recorded therein and that there is no denial to this. The fact that the described name "Jayant Pundlik Jadhav" instead of "Jaywantrao Pundlikrao Jadhav" cannot be treated and/or taken as non-joinder of the necessary party as contended.
21 With regard to the validity and/or effect of service on respondent No.6, will be considered at a later stage of the proceedings. As submitted by the learned counsel appearing for the respective parties that the application for amendment needs to be considered first and therefore, by consent it is heard and decided on the basis of the averments made by the parties and the documents available on record.
22 Admittedly, there is no reply to main election petition field by the contesting party in this matter. This undisputed fact/position supports the case the petitioner to allow the amendment application so taken out to correct the name of respondent no.6. In view of the above reasoning itself ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw as this correction/ amendment is nothing but removal of the technical and minor defects. Therefore, the mandate of 45 days, in the facts and circumstances of the case, in no way dis- entitles the petitioner to amend the election Petition.
23 I am inclined to observe that those objections are unsustainable and so also the submissions that there are many persons by name Jayant Jadhav in the district of Nashik. There cannot be any dispute with regard to this aspect or issue as long as there is no one else, by name Jayant Jadhav, who contested and won the election in question. The submissions so made, in my opinion, in no way sufficient to overlook the basic uncontroverted averments so made in the election petition supported by the documents. The court at this stage needs to consider the averments as well as the supporting documents.
For the same reason even the submission with regard to availability of voters list referring to the name "Jayant"" as "Jaywant" is of no assistance. No sufficient grounds to dismiss the election petition so filed as contemplated under section 86 of the Act for non compliance of Section 82 of the said Act.
24 Strikingly the applicant has descried himself as "Jadhav Jaywantrao Pundlik", which supports the averments and the relevant documents. This itself means that no one else can dispute the facts as well as the documents to show that the Applicant is the same person who has participated, contested and got elected in the election in question.
::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw
25 Both the counsels have cited various judgment in
support of their rival contentions. The learned senior counsel
for the Applicant in Application No. 5/2012 has relied upon the following Judgments :
I) AIR 1982 SC 983 - Jyoti Basu vs. Debi Ghosal II) AIR 1996 Bombay 5- Comrade Kallappa Laxman Malabde vs. Prakash Kallappa Awade.
III) AIR 1969 Andra Pradesh 68- N.V.L. Narasimha Rao vs. Kotha Raghuramayya & Ors.
IV) AIR 1961 Bombay 29 - B.T. Bholse vs. M.S. Aney.
V) AIR 2005 SC 2441- Kallash vs. Nankhu & Ors. VI) AIR 1958 SC 637- Kamaraja Thevar vs. Kunju Thevar. VII) AIR 1969 SC 872- K. Venkateswara Rao & anr. vs. Bekkam N. Reddi & Ors.
VIII) 1991 Supp (2) SCC 624- B. Sundara R. Reddy vs. Election Commission of India & Ors.
IX) AIR 1958 S.C. 698 -Inamati M.Basappa vs/ Desao Nasavrak Ayyappa.
26 There cannot be a dispute with regard to the provisions of the election laws and so also its mandate. This is not a case of non-joinder of party and/or necessary party or impleading and/ or grant of non-inclusion of the party and/or effect of the non-joinder of the necessary party within limitation. This is a case of wrong description of the name in the array of the party of the petition. The averments as well as the supporting documents in which details and description of ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw the elected candidate has been provided. This admitted position distinguishes all the cases so cited.
27 The learned senior counsel appearing for the Petitioner in Application No. 6/2012 has also relied on following Judgments :
1) 1995 Supp (3) SCC 407 - Gore Lal Shakya vs. Maharaj Singh Yadav & Ors.
2) AIR 2003 SC 51 -Ram Prasad Sarma vs. Mani Kumar Subba & Ors.
3) AIR 2000 Bombay 419- Rajendra Vithal Raut vs. Gangadhar Dilip Sopal
4) 2011(1) Mh. L.J. 287 -Chinnaji Bhimayya Nalbogd vs. Nanaji Sitaram Shamkule
5) (2002) 1 SCC 301- B.S. Yadiyurappa vs. Mahalingappa & Ors.
and thereby contended that the wrong description and/or wrong typing of the name of the parties is nothing but typographical error and this cannot be in any way invalidate the election petition. The Apex Court in Gore Lal Shakya's case (supra) in para 9 observed as under :
"9. In the present case we are of the firm view that the mentioning of the name of the 10 th respondent as "Sanjai Kumar" in the array of parties is nothing but only a typographical error which is insignificant. Under these circumstances we are unable to agree with the High Court that this ::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw typographical error has invalidated the election petition under Section 86(1) of the Act."
The similar principle is reiterated by the Apex Court in the case of Ram Prasad Sarma (supra), referring to the provisions of election laws in question. This court also in the case of Rajendra Vithal Raut (supra) permitted the amendment to correct the name by treating it as typographical error and oversight mistake so also in the case of Chinnaji Bhimayya Nalboga (supra).
28 It is relevant to note that though Application is taken out for dismissal of the present election petition by the applicant, who has not filed even Vakalatnama and/ or if he is an independent person and/or not concerned with the election in question, he cannot be said to be aggrieved party in such election petition so filed and if so allowed after the due trial, again of respondent No.6. Application No. 06/2012 so filed itself shows so also the documents placed on record that the Applicant/Petitioner is the person who is concerned with the election petition being the elected candidate. Hear at this stage, these reasoning are only for the purpose of adjudication of these two applications.
29 Therefore, taking over all view of the matter, I am inclined to pass the following order :
I) Application No. 05 of 2012 for dismissal of election petition is rejected.
::: Downloaded on - 09/06/2013 19:27:07 ::: spb/ 30-11Aep5.6.12.sxw
II) Application No. 06 of 2012 for amendment is allowed
in terms of prayer clause (a).
III) The Petitioner to carry out amendment as prayed,
within one week from the receipt of the copy of this order.
IV) The parties to take further steps accordingly.
V) There will be no order as to costs.
(ANOOP V. MOHTA, J)
.....
::: Downloaded on - 09/06/2013 19:27:07 :::