Ranjitsinh Vijaysinh Mohite ... vs Uttamrao Shivdas Jankar
2004 Latest Caselaw 1301 Bom

JUDGMENT

S.J. Vazifdar, J.

1. This application on behalf of the Respondent seeks a summary dismissal of the above Election Petition. In the Election Petition the Petitioner has sought a declaration that the nomination of the Petitioner for election to the Local Authorities Constituency, Solapur of the Maharashtra Legislative Council, Biennial Elections, 2003 was improperly rejected by the Returning Officer and that the election of the Respondent as a member of the Maharashtra Legislative Council in the said election is void and that the same be set aside.

2. Mr. C.J. Sawant, the learned Senior Counsel appearing on behalf of the Respondent supported the application for the summary dismissal of the Election Petition on two grounds. Firstly, he submitted that the Petitioner had alleged corrupt practices within the meaning of that expression in The Representation of the People Act, 1950' (hereinafter referred to as "the said Act") and in particular Section 100 thereof, but had failed to comply with the requirements of the said Act. Secondly, he submitted that there is a non-joinder of necessary parties.

3. An Election Petition containing allegations of corrupt practices is liable to be dismissed if it does not contain material facts and full particulars and is not accompanied by an affidavit as required by the proviso to Section 83 of the Act. The question that arises for consideration in this case however is whether such an election petition is liable to be dismissed as a whole even if it is also based on other grounds validly pleaded. I have answered the4 question in the negative. I must hasten to add that in fact the petitioner has repeatedly pleaded that he is not alleging of any corrupt practice in this petition. I have however, for the purpose of this application, proceeded on the basis that the petitioner has alleged in the petition corrupt practices.

4. For the purpose of deciding the application it is necessary to set out the facts only briefly. The Returning Officer by a notification dated 7th November, 2003 declared the election programme for the said elections. The notification stipulated 3 p.m. on 14th November, 2003 as the time for submission of nomination papers. The notification further stated that the nomination papers would be taken up for scrutiny on 15th November, 2003. The notification fixed 3 p.m. on 17th November, 2003 as the last date for withdrawal of candidature. Lastly it provided for a poll to be taken up on 1st December, 2003 in the event of the election being contested.

5. The Petitioner's case is that on 14th November, 2003 he submitted his nomination papers as an independent candidate in the prescribed form to the Presiding Officer within the time stipulated for the same. The same was signed by the Petitioner and by ten proposers, who being members of the Mangalwedha Municipal Council, Mangalwedha were electors for the said constituency for the said election. The Respondent and two others, one Subhash Rajaram Patil and one Dilip Dnyandeo Chougule, also presented their nomination papers for the said election.

6. What transpired at the time of scrutiny and the manner in which the Returning Officer took his decision rejecting the Petitioners nomination is referred to in the Election Petition. It would be convenient to preface the narration therefore by noting that Mr. Sawant relies upon the same in support of his contention that the Petitioner has alleged corrupt practices in the petition and the same form the basis for the reliefs claimed therein whereas Mr. Aney, the Learned Senior Counsel appearing on behalf of the Petitioner submits that the same are made only to complete the narration of facts and do not constitute the basis on which the Election Petition is founded.

7(a). At the time of scrutiny of the nomination papers on 15th November, 2003 the Petitioner and the Respondent were present with their respective election agents. The said Subhash Rajaram Patil and Dilip Dnyandeo Chougule were also present. Two of the Petitioners' proposers one Smt. Jayamala Purnanand Mhetre and one Sharif Mohmad Badshah Sutar were in the camp of and accompanied by the Respondent.

7(b). At the time of scrutiny the said Dilip Chougule objected in writing to the nominations of the Petitioner alleging that two of the proposers namely Smt. Jayamala Mhetre and Sharif Mohmad Badshah Sutar had not signed the nomination of the Petitioner and that their signatures were not genuine. The said two proposers also submitted separate complaints in writing to the Returning Officer dated 15th November, 2003. The said Smt. Jayamala inter-alia stated that she had not signed any nomination paper; that she came to know that her name was written on the nomination paper of the Petitioner and that her signature had been forged. She also filed an affidavit of that date before the Returning Officer to this effect. The said Sharif Mohamad Badshah Sutar also submitted his complaint and filed an affidavit to the same effect.

7(c). The Petitioner's case is that he orally objected before the Returning Officer to the production of the said two proposers and taking evidence in the form of affidavits and written complaints. The Returning Officer however considered the complaints and the affidavits which according to the Petitioner he ought not to have done, inter-alia in view of the provisions of Section 36(2) of the said Act. The Petitioner filed his own affidavits and the affidavits of five other proposers including one Ratan Govind Pandit who is Smt. Jayamala Purnanand Mhetre's brother.

8. The Petitioner has in paragraphs 12, 13 and 14 of the petition referred to the affidavits filed by himself and the five proposers including the affidavit of Ratan Govind Pandit, Smt. Mhetre's brother. It is based on these three sets of affidavits as well as a Writ Petition which I shall shortly refer to that Mr. Sawant submitted that the Petitioner had challenged the election inter-alia on the ground that the Respondent and/or his agent were guilty of corrupt practices. Mr. Aney submitted that these affidavits and the Writ Petition were referred to only to complete the narration of facts and that the contents thereof have not been adopted in the Election Petition by the Petitioner for the purpose of contending that the Respondents were guilty of any corrupt practices.

9. It will be convenient therefore at this stage to merely refer to these affidavits though in the ultimate analysis this order is not based upon the interpretation of the manner in or/the purpose for which they have been referred to in the Election Petition.

10(a). The Petitioner in his affidavit dated 15th November, 2003 (Exhibit"H") reiterated his denial that the signatures were forged and alleged that the Respondent had abducted the said two proposers and by creating terror had compelled them to make applications and false affidavits.

10(b). The five other proposers have filed a common affidavit (Exhibit"I") stating that on 14th November, 2003 the Respondents alongwith his supporters terrorized them for having signed the Petitioners nomination papers as proposers. They further alleged that the Respondent had abducted and threatened the said two proposers who had disowned their signatures. They also stated that on 15th November, 2003 they saw the said two proposers in the "captivity" of gundas and associates of the Respondents who had not even allowed them to talk to them. Lastly, they alleged that the said associates of the Respondents threatened them even on that date.

10(c). Ratan Govind Pandit i.e. Smt. Jayamala Mhetre's brother in his affidavit (Exhibit"J") confirmed that his sister had signed the Petitioners nomination paper and alleged that the Respondent and his associates by creating terror abducted his sister when she was alone in the house and made her sign a bogus affidavit. He stated that he found her in their "captivity" and that they did not allowed her to talk to him.

10(d). The Petitioner had earlier filed Writ Petition No. 7955 of 2003 in this Court in which similar allegation were made and in which the aforesaid affidavits were relied upon.

11. There is no doubt that the above affidavits and the Writ Petition contain allegation of corrupt practices. I did not understand Mr. Aney to dispute this either. If indeed these corrupt practices have been made the basis of the petition, the Respondent would be entitled to succeed in having the petition dismissed for the Petitioner has admittedly not complied with the provisions of the said Act in relation to these allegations.

12. The matter however does not rest there. Mr. Aney, submitted firstly that the aforesaid affidavits as well as the Writ Petition filed by the Petitioner in this Court have been merely annexed to the election petition and referred to therein for the purpose of completing the narration of facts least it was contended that the Petitioner was guilty of suppressing any material. He took me through the relevant portions of the Election Petition wherein these affidavits and the Writ petition have been referred to. He stated that fact that nowhere in the Election Petition have the merits and contents of the said affidavits and the Writ Petition been adopted or incorporated so as to form the basis or the cause of action on which the reliefs in the Election Petition have been claimed. He submitted, not without force, that this was made abundantly clear from paragraph 28 of the Election Petition itself which reads as under :

"28. Petitioner states that in the present petition he has not alleged any corrupt practices against the Respondent or anybody else and therefore the affidavit as provided under proviso to section 83 of the said Act of 1951 in Form 25 prescribed under Rule 94-A of the Conduct of Election Rules, 1961 is not filed with this Petition."

This statement has been reiterated more than once in the Petitioner's affidavit in reply to the application.

13. Mr. Sawant on the other hand, apart from relying upon the said affidavits relied upon the fact that the same had also been referred to in the concise Statement. He also relied upon the verification in respect of each of the aforesaid affidavits. The Petitioner has verified each of the affidavits by stating that the same is a true and correct copy of the affidavits actually filed and that he believes the same to be true and correct.

14. It is really a matter of interpretation whether the Petitioner has verified merely the fact that the said affidavits have been filed or whether he has verified the truth of the contents thereof. However, in my opinion this application can be disposed of on a narrower issue and without deciding whether or not the Petitioner has made the alleged corrupt practices as a part of the cause of action on the basis of which the reliefs in the Election Petition have been prayed for. I will assume for the purpose of this order that the Petitioner has alleged corrupt practices on the part of the Respondent.

15(a). Mr. Aney invited my attention inter-alia to paragraphs 11 and 25 of the Election Petition. The Petitioner has therein challenged the decision of the Returning Officer rejecting his nomination also on the basis of the manner in which the decision has been taken, to wit the Petitioner has challenged the decision making process adopted by the Returning Officer. The Petitioner for instance, stated that the scope of the inquiry under Section 36(2) of the said Act is very limited and is of a summary nature; that the Returning Officer cannot embark upon a judicial inquiry as in a civil suit; that he has wrongly entertained the said affidavits and the complaints of two proposers who had disowned their signatures; that the Returning Officer had wrongly entertained the pleas, contentions, complaints and affidavits of the said persons at the time of scrutiny and that as a result thereof the entire inquiry conducted by the Returning Officer is vitiated and the rejection of the nomination is improper and illegal. It is also contended that the Returning Officer wrongly had not taken into consideration the relevant evidence.

15(b). The rejection is therefore challenged under Section 100(1)(c) and (d)(iv) of the said Act which reads as under;

"100. Grounder for declaring election to be void. -

(1) Subject to the provisions of sub-section (2) if the [High Court] is of opinion

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the [the High Court] shall declare the election of the returned candidate to be void].

16. The challenge to the decision making process adopted by the Respondent is therefore clearly different from the challenge to the election on the ground of the Respondent having indulged in corrupt practice.

17. I presume for the purpose of this order that the petition also contains allegations of corrupt practices. That however would not entail a summary dismissal of the Election Petition in view of the fact that the Petitioner has also challenged the election on another and if I may add, distinct ground viz. the decision making process adopted by the Returning Officer. It must be clarified at this stage that Mr. Sawant's submissions in support of his application was limited to the effect that according to him once it is found that a corrupt practice is alleged and the petition in this regard is not maintainable, the petition as a whole ought to be dismissed even if it is filed and sought to be maintained on other grounds. In other words according to him if corrupt practices have been alleged and there is non-compliance with the provisions of Section 83 of the Act the petition as a whole is not maintainable even if it is also founded on other grounds.

18. The submissions is not well founded. There is nothing in the Act which supports Mr. Sawant submission. In such a case the petition would not be maintainable only in respect of such corrupt practices in respect whereof the Petitioner has not complied with the provisions of the Act and not in respect of the grounds which are validly taken. For instance, if several corrupt practices have been alleged only some of which are found not to have been properly pleaded and verified, can it be said that the petition is to be dismissed in respect of the other corrupt practices which have been pleaded, verified and supported in accordance with the provisions of the Act. I think not. The question is not res-integra in view of the judgment of the Supreme Court reported in Subhash Desai vs. Sharad J. Rao and Ors, 1994 Supp (2) Supreme Court Cases 446. The Supreme Court held as under :

"12. The scope of Section 83(1) has been recently examined in the case of F.A. Sapa v. Singora where it was pointed out that the underlying idea in requiring the election petition to set out in a concise manner all the 'material facts' as well as the 'full particulars', where the complaint is in respect of commission of corrupt practice, is to "delineate the scope, ambit and limits of the inquiry at the trial by the election petition". In the present case, the allegations made, in the election petition, may be true or false, but it is not possible to hold that the election petition does not disclose any material fact or give the material particulars of any of the corrupt practices. It need not be pointed out that even of the court is satisfied that, in respect of one of the corrupt practices alleged, material facts and full particulars thereof have not been stated, still the election petition cannot be dismissed, if in respect of another corrupt practice the material facts and full particulars have been stated in accordance with the requirement of Section 83(1) of the Act.

19. On a parity of reasoning and on principle it follows that non-compliance with the provisions of the Act in respect of corrupt practices alleged in an Election Petition will not render the entire Petition liable to be dismissed if it is also founded upon any other ground validly taken.

20. Before parting with this order it is necessary to refer to the fact that Mr. Aney reiterated that the Petitioner, for the purpose of this petition, does not allege any corrupt practice by or on behalf of the Respondent. Thus at the trial, the Petitioner shall not seek to raise or frame any issue in this regards. It will not be necessary for the Respondent in his written statement to deal with any corrupt practice including those alleged in the Writ Petition or in Exhibits- H, I and J to the Election Petition. This logically follows from paragraph No. 28 of the election petition and Mr. Aney's statement that it is the decision making process/the manner in which the Returning Officer has come to his decision that is under challenge and the sole basis on which the election petition is based. It is further clarified that all contentions with respect to the grounds on which the Election Petition is founded are kept open including the grounds of non-joinder of necessary parties as well as the ground that by merely by even successfully challenging the decision making process adopted by the Returning Officer the election is not liable to be set aside.

21. Subject to the above clarification the above application is dismissed.

22. I must clarify that considering the view that I have taken and Mr. Aney's above statements I have not considered it necessary to consider the authorities cited by Mr. Sawant in respect of his submission that Election Petitions where corrupt practices are alleged are liable to be dismissed for non-compliance with the provisions of Section 83 of the Act. There is really no dispute regarding their submission. However, none of the judgments cited hold that such petitions are liable to be dismissed even if they are also founded on other grounds validly taken. The judgments therefore are of no assistance.

All concerned to act on a copy of this order duly authenticated by the Office

Adjourned to first week of February, 2005 for settling of issues.