Sayed Najer @ Sayed Najir S/O Baba ... vs Returning Officer And Ors.
2001 Latest Caselaw 641 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the record.

2. This petition arises from the judgment and order dated 23-1-2001 passed by the Additional Commissioner, Aurangabad in Appeal No. 34 of 2000. The said appeal was filed by the petitioner and his brother against the order dated 11-12-2000 passed by the Additional Collector, Jalna in dispute No. 14 of 2000. By the impugned order, the Additional Commissioner has confirmed the order of the Additional Collector regarding fresh elections to the post of Sarpanch and Up-Sarpanch of village Panchayat of Nandi, in Taluka of Ambad, in district of Jalna.

3. It is the case of the petitioner that he was elected as a member of the said village panchayat for the term commencing from the year 1995. When fresh elections were announced in May 2000, he contested the election for membership of the panchayat and was accordingly elected from Ward No. 1. He defeated his rival candidate namely Sayed Munir in the said election. His election to the membership of the panchayat was not challenged. Thereafter the meeting was conveyed for election of Sarpanch and Up-Sarpanch of the panchayat on 25th September, 2000. The petitioner chose to contest the election for the post of Sarpanch. However, a dispute was raised by the respondent No. 8 regarding identity of the member elected from Ward No. 1 on the ground that the person elected was one Najir whereas the name of the petitioner was Najer. It is the case of the petitioner that the Returning Officer, on verification of the identify of the petitioner as being the same person who had been elected as member of the Panchayat from Ward No. 1 of the said village panchayat, after hearing Police Patil, Talathi, Gram Sevak and others, declared the petitioner No. 1 to be elected as Sarpanch and the petitioner No. 2 as Up-Sarpanch. The respondent No. 2, who had contested against the petitioner for the post of Sarpanch was defeated so also the respondent No. 7, who lost to the petitioner No. 2 for the post of Up-Sarpanch. Therefore, dispute was raised before the Collector under section 33(5) of the Bombay Village Panchayat Act, 1958 (hereinafter called as the said Act) and the Additional Collector, Jalna by order dated 11-12-2000 held that the petitioner No. 1 is not the person who was elected from Ward No. 1 of the said panchayat but it is the brother of the petitioner No. 1 who has been elected from the said ward and, therefore, declared the election of petitioner No. 1 to the post of Sarpanch to be null and void. Simultaneously, the election of the Up-Sarpanch was also declared to be null and void and fresh elections were ordered. Being aggrieved, the petitioners preferred appeal before the Additional Commissioner, Aurangabad which came to be dismissed by the impugned order confirming the finding of the Additional Collector in relation to the identity of the person elected from Ward No. 1. Hence present petition.

4. It is the case of the petitioners that the petitioner No. 1 knows only to affix his signature and that his nomination form, while contesting the election for the membership of the panchayat, was filled in by some other person and he had only affixed his signature thereto and in the process, the name of the petitioner was wrongly recorded as Najir instead of Najer in the said form. It is not in dispute that the name of the petitioner is Najer whereas that of his brother is Najir. The nomination form was filled in Deonagari script and the name of the candidate was disclosed as Syed Najer Syed Baba and that led to confusion, which however, according to the petitioner was resolved by filing affidavit of the petitioner immediately after filing of the nomination form and before scrutiny. In the affidavit it was stated that both the names are of the same person. It is now sought to be contended by the petitioners that the said affidavit was filed under wrong advice. However, when the matter came up for hearing of dispute before the Additional Collector, various affidavits were filed including that of the brother of the petitioner, the candidate who had contested against the petitioner in the panchayat election, Talathi of the village and Police Patil of village and all those deponents deposed that it was the petitioner who had contested the election and it was the petitioner who was elected from Ward No. 1 as member of the panchayat. Inspite of the said evidence being produced on record, ignoring the same the Additional Collector referring to the voters list in relation to voter Nos. 521 and 291, rejected the claim of petitioner No. 1 to have been elected from Ward No. 1 and on that ground, illegally set aside the election of the petitioner to the post of Sarpanch. It is their further contention that the election of the petitioner No. 2 was set aside without any justification. The illegality committed by the Additional Collector, in interfering with the election of the petitioner No. 1 as Sarpanch and the petitioner No. 2 as Up-Sarpanch has been improperly confirmed by the Additional Commissioner, Aurangabad.

5. On the other hand, it is the case of the respondents that undisputedly, Najir and Najer are two different persons and the nomination form filled in discloses identification of the person by name Najer with all other details in relation to voter No. 521 whereas the petitioner is undisputedly listed at Serial No. 291 in the voters list and his identification does not match to that of voter at Serial No. 521. It is their further case that there was an attempt on the part of the petitioners to mislead the authorities at the time of scrutiny of the nomination form inasmuch as it was represented that the voter at Serial Nos. 521 and 291 was one and the same person and is known by two names. In any case, since the form which was filled in was in relation to voter No. 521 and it is admitted that the said identity is not of the petitioner No. 1, it is the contention of the respondents that no fault can be found with the impugned order setting aside, the election of the petitioner to the post of Sarpanch as it is apparent that he was never elected as member of the Panchayat and therefore, was not entitled to contest the election for the post of Sarpanch. Reliance is placed in the decision of the Apex Court in the matter of K. Venkatachalam v. A. Swamickan and another, wherein it has been held by the Apex Court that the appellant therein, inspite of being not an elector in the electoral roll for the assembly constituency for general elections, he had filed his nomination on affidavit impersonating himself for another person of the same name in the electoral roll and, therefore, he lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with section 5 of the Representation of Peoples Act which mandated that a person to be elected from an assembly constituency has to be elector of that constituency.

6. Upon hearing the learned Advocates for the parties and on perusal of the record, at the outset, it must be noted that the decision of the Apex Court is of no assistance in the case in hand. That was the case where a person had sought to be impersonated a voter in a constituency and thereby had sought to contest the election of the membership of the assembly. That is not the case in the matter in hand. On the contrary, it is the case of the petitioner No. 1 himself that he is an illiterate person and he knows only to affix his signature and his nomination form was filled in by someone else when he had contested the panchayat election. It is his further case that it was he who had contested the panchayat election and he was elected as the member from Ward No. 1 which was confirmed by his brother who is otherwise stated to have been elected from the said ward. It is his further case that the fact of his election is also confirmed by the Talathi of the village. Police Patil as well as by the person who had contested the said election against him. Being so, the decision of the Apex Court, which is on totally different point of law and in totally different set of facts, is of no help in the case in hand.

7. The order of the Additional Collector discloses that the voters list in relation to Ward No. 2 at Serial No. 521 refers to the voter with the name Najir Baba Patel and his identification number issued by the election commission is 039573 whereas the voter's name at Serial No. 291 form Ward No. 1 is that of Syed Najer Syed Baba and the identification number given by the Election Commission is 069973. The nomination form submitted at the time of election for the membership in relation to Ward No. 1 discloses the number of the candidate to be that of the voter No. 521 from the voters list. Considering the same, the Additional Collector has held that the identity of the petitioner does not suit to the elected member from Ward No. 1 of the said panchayat. The Additional Commissioner in the impugned judgment has not interfered with the said finding further observing that two nomination forms filed by the petitioner are identical in nature as far as the identity of the candidate is concerned and, therefore, no fault can be found with the finding of the Additional Collector. It cannot be disputed that the order of Additional Collector as well as that of the Additional Commissioner nowhere disclose any analysis of the evidence consisting of affidavits produced by the petitioners on record. It only refers to the voter numbers in the voters list and the number disclosed in the nomination forms.

8. The record certainly discloses the petitioner having filed four affidavits in the course of hearing before the Additional Collector. One of them is that of the brother of the petitioner namely Najir contending that he had not contested the election from Ward No. 1 and it was his brother i.e. the petitioner who had contested the same. Similarly, the candidate who had lost the election to the membership of the panchayat from Ward No. 1 has also filed his affidavit confirming the fact that he had not raised any objection to the election of petitioner No. 1 from Ward No. 1 and that the brother of petitioner No. 1 Najir stays at Aurangabad on account of his business and his name has been included in Ward No. 2 and he has not contested the village panchayat election held in the year 2000. Similar is the affidavit of Talathi of village and of the Police Patil confirming the said facts. Apparently, this evidence has not at all been considered by both the authorities below while deciding the matter.

9. There is yet another confusion made by the Additional Collector in his order. The voter No. 521 is stated to have been listed in Ward No. 1 when the voter's name as Syed Najir Syed Baba Patel is in fact included in the voters list pertaining to Ward No. 2. There is no doubt that the nomination form filed by the petitioner No. 1 disclose reference to voter No. 521. It also discloses the age of the candidate to be 36 years. It discloses name of the candidate as Syed Najir Syed Baba. It is undisputed fact that the petitioner's form in question was in relation to Ward No. 1. The voters list in relation to Ward No. 1 at Serial No. 291 discloses the name of the voter as Syed Najir Syed Baba. The age of the voter at serial No. 291 is of 39 years whereas that of the voter at Serial No. 521 is 36 years. There is nothing on record to show that at any point of time during the election, process and till the meeting for election of Sarpanch was held, there was any objection raised regarding identity of the person elected from Ward No. 1. Certainly it can be also argued that there was no occasion for the same and the first time occasion for them arose at the time of meeting held for election of Sarpanch. However, all these facts are to be decided on proper enquiry by the fact finding authority concerned in the matter. The matter relates to the election of a representative of people in a democratic process. The person who has contested against the petitioner No. 1 in the election solemnly declares on oath that the contest was against petitioner No. 1. The person who is stated to have in fact contested the election from Ward No. 1, states on oath that it was not he but the petitioner No. 1 who had contested and won the same. This evidence apparently has not at all been considered by the authorities below and merely because on the basis of the voters number disclosed on the nomination form does not correspondence to the voters number of the petitioner No. 1 in the voters list and, therefore, the identity of the candidate disclosed in the nomination form for the election of member in Ward No. 1 does not match with the identity of the petitioner, the claim of the petitioner to contest the election for Sarpanch as a member of the Panchayat has been rejected. Such an exercise cannot be said to have been done with proper application of mind and after taking into consideration the relevant materials on record and, therefore, both the orders are required to be held to be bad in law and are liable to be quashed and set aside. However, the matter does not end there as it is not permissible, for this Court to go into the disputed questions of facts and it is basically the function of the fact finding authority and, therefore, the matter is required to be remanded to the Additional Collector to reconsider the matter after taking into consideration the entire evidence on record in proper perspective and to pass an appropriate order in accordance with the provisions of law, after hearing the parties.

10. Accordingly, the petition succeeds. The impugned orders are hereby quashed and set aside. The matter is remanded to the Additional Collector, Jalna to decide the matter afresh bearing in mind the observations made above. The authority shall bear in mind the provisions of section 33(5) of the Bombay Village Panchayat Act and the Rules made thereunder, particularly in relation to the time factor within which such proceedings are to be disposed of and bearing in mind the same, the Additional Collector shall dispose of the matter within a period of 30 days from the date of receipt of writ of this Court. The parties to appear before the Additional Collector, Jalna on 27-8-2001 at 10.30 a.m. for further proceedings in the matter.

11. Rule made absolute accordingly. No order as to costs.