Bombay High Court
Krishna S/O Panchamrao Khopade vs Satish S/O Jhaulal Chaturvedi And ... on 31 August, 2007
Author: K Rohee
Bench: K Rohee
JUDGMENT
K.J. Rohee, J.
1. This is an election petition under Section 80 of the Representation of People Act, 1951 by an elector challenging the election of the returned candidate from 134-Nagpur East Legislative Assembly Constituency.
2. The facts which are undisputed can be stated thus:
The Programme of General Election 2004 for Maharashtra Legislative Assembly was declared on 15.9.2004 as under:
i) Last Date for submission of Nomination Papers 22.09.2004
ii) Scrutiny of Nomination Papers 23.09.2004
iii) Last Date for withdrawal of Nomination Papers 25.09.2004
iv) Polling 13.10.2004.
v) Declaration of Result 16.10.2004.
3. Shri Satish Jhaulal Chaturvedi (R-1) represented 134 Nagpur-East Legislative Assembly Constituency during the elections of 1980, 1990 and 1995 as the candidate of Indian National Congress. He had lost only one election of the year 1985 wherein he had contested as an independent candidate. On 22.9.2004 R-1 presented his nomination paper to the Returning officer of 134 -Nagpur East Legislative Assembly Constituency (R-10) as the candidate of Indian National Congress and Nationalist Congress Party alliance. Shekhar Jayram Sawarbandhe (R-2) presented his nomination paper for the said constituency as the candidate for Bhartiya Janta Party-Shiv Sena alliance. Respondents No. 3 to 9 also presented their nomination papers for the said constituency either as candidates of some party or as independent candidates. The election was held as scheduled and the results thereof were declared wherein R-1 polled 96246 votes and R-2 polled 84415 votes. R-1 was declared elected. R-2 who was the nearest rival was a runner up.
4. The petitioner is an elector from the said constituency. He is the Corporator of the Nagpur Municipal Corporation since long and was Secretary of BJP Nagpur City during the election period.
5. The petitioner challenged the election of R-1 mainly on two grounds which are briefly stated as below:
(1) According to the petitioner R-1 did not make full disclosure of his assets in his affidavit filed with the nomination paper. R1 filed affidavit containing incomplete information about his assets and the assets of his spouse in the prescribed form. R-1 even suppressed Flat No. 26/3 Municipal House No. 339/A/203 in Ward No. 66 allotted to him by MHADA and arrears of municipal taxes thereon amounting to Rs.69,070/-plus Rs.5909/-. R-1 did not comply with Section 33 of the Act and the orders of the Election Commission dated 27.3.2003. Hence the nomination paper of R-1 was liable to be rejected by R-10 under Section 36(2)(b) of the Act. R-10 however, improperly accepted the nomination paper of R-1 whereby the result of election was materially affected. The election of R-1 is, therefore, liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951.
(2/A) According to the petitioner R-1 did not keep correct account of the expenditure incurred by him in connection with the election. The statement of expenditure submitted by R-1 after election showed that he incurred expenditure of Rs.6,37,089/-during his election campaign. According to the petitioner R-1 either suppressed expenditure or showed meager expenditure in the statement of account. R-1 incurred following expenditure on various heads which he failed to show in the statement of account:
Rs. 6,714/- Expenses on workers gathering
Rs. 3,23,165/- On account of advertisements
Rs. 95,049/- On account of vehicles used by R-1
during election campaign
Rs. 86,100/- On account of pendal in front of campaigning
office at H.B. town
Rs. 83,400/- On account of pendal (dining hall) towards
rear side office at H.B. town
Rs.32,69,500/- On account of hosting of food during
21.9.2004 to 13.10.2004 for 5000 persons
at H.B. town main campaigning office
Rs. 50,000/- On account of hosting of food at Memon Hall,
Satranjipura on 25.9.2004
Rs. 22,000/- On account of Generators used by
respondent No. 1 during his public rallies
and election campaign
Rs. 9,000/- On account of Flex and Banners.
================
Rs.39,44,828/-
================
The said amount needs to be included in the statement of expenditure submitted by R-1. Thus the total expenditure incurred by R1 during his election campaign comes to Rs.6,37,089/-+ Rs.39,44,828 = Rs.45,81,917/-. As such R-1 exceeded the maximum limit of election expenses of Rs.10 lacs prescribed under Rule 90 of the Conduct of Election Rules, 1961. The incurring of expenditure in contravention to Section 77 is a corrupt practice within the meaning of Section 123(6) of the Representation of the People Act, 1951 (for short 'the Act') and the election of R-1 is liable to be declared as void on this count also.
(2/B) According to the petitioner R-1 indulged in bribery by hosting free meals to the poor voters in his constituency in the rear pendal of his election office situated at H.B. town. He hosted meals for about 5000 persons daily from 21.9.2004 to 13.10.2004 inducing the electors to vote for R-1. On 25.9.2004 R-1 arranged a gathering of Muslim Community in Memon Hall, Satranjipura and hosted dinner for about 1000 persons belonging to Muslim Community as a gratification to vote for R-1. Thus R-1 is guilty of corrupt practice under Section 123(1)(A)(b) of the Act and the election of R-1 is liable to be declared void on this count also.
6. The petitioner also prayed that because of the corrupt practice committed by R-1, R-2 could not obtain majority of valid votes. R-2 is, therefore, entitled to be duly elected as a candidate from the said constituency and he should be declared as such.
7. R-1 opposed the petition by his written statement (Exh.23). He denied that the details of his assets are not disclosed in the affidavit. According to him all the properties owned by him and his spouse are fully disclosed in his affidavit. He denied that his nomination paper was incomplete and was liable to be rejected on that count alone. He denied that his nomination paper was improperly accepted and thereby the result of the election has been materially affected. He submitted that the nomination paper filed by R-1 was rightly accepted by R-10. He submitted that neither the Representation of People Act, 1951 nor the Rules, Orders, instructions issued thereunder contained any provision regarding disqualification of a candidate due to filing of defective affidavit or suppressing material facts in the affidavit about the assets. He denied that any ground for declaring his election as void is made out under Section 100(1)(d)(i) of the Act.
8. R-1 denied that he did not submit correct statement of expenditure. He denied that he has suppressed major expenditure on various items as contended by the petitioner. He denied that he incurred expenses exceeding the maximum limit of Rs.10 lacs prescribed under Rule 90 of the Conduct of Election Rules, 1961. He denied that on that count his election is liable to be declared as void under Section 123(6) of the Act. R-1 submitted that neither the Election Commission nor the District Election Officer has any power or authority to prescribe schedule of rates (Exh.61). He further submitted that there is no basis for prescribing such rates. R-1 submitted that he has shown actual expenditure incurred by him in the statement of account.
9. R-1 denied to have hosted meals to poor voters at H.B. town Election Office in order to seek their votes. R-1 denied to have hosted dinner at Memon Hall to the voters of muslim community. According to him it was an informal gathering of muslim community to discuss the problems of the people. It was not sponsored by R-1. R-1 was there hardly for 15 minutes and left the place. R-1 further submitted that material facts in this respect are missing from the petition and no particulars of the alleged gratification are given. Thus the petitioner has failed to make out a case of corrupt practice under Section 123(1)(A)(b) of the Act. The petition deserves to be dismissed for lack of material facts and particulars. It is frivolous and vexatious and is liable to be dismissed with costs.
10. R-2 filed his written statement at Exh.22 and supported the allegations made by the petitioner.
11. R-3 and R-5 filed their written statements at Exh.16 and 20 respectively. However, they are of very formal nature.
12. R-10 filed written statement at Exh.19-A. R-10 submitted that in compliance with the directions issued by the Election Commission on 27.3.2003, he scrutinized the nomination papers of R-1 and found them to be in consonance with the directions of the Election Commission. R-10 submitted that the Returning Officer is not expected to make any inquiry into the correctness or otherwise of the information filed along with the nomination paper. R-10 denied that the nomination paper of R-1 was liable to be rejected. R-10 submitted that grounds on which the petitioner expected the Returning Officer to reject the nomination paper of R-1 do not find place in Section 36 of the Act. R-10 submitted that only non-furnishing of the affidavit by the candidate is considered to be violation of the directions of the Election Commission and in that case the nomination paper of the concerned candidate is to be rejected by the Returning Officer. In the present case it is not disputed that R-1 did file his affidavit along with his nomination paper which was part and parcel of the nomination paper. Thus R-1 had complied with the directions of the Election Commission.
13. On the above pleadings of the parties, the following issues were framed at Exh.32. I give my findings thereon as under:
ISSUES FINDINGS
(1) (a) Does the petitioner prove that R-1
furnished incomplete information of
his and spouse's assets in his
affidavit (Exh.36) filed with the
nomination paper ? .... Yes.
(b) Does the petitioner prove that R-1
suppressed Flat No. 26/3 of MHADA
and the arrears of municipal taxes
thereon in his affi davit (Exh.36)
filed with the nomination paper ? .... Yes.
(2) If yes, whether it amounts to a
defect of substantial character ? .... No.
(3) Does the petitioner prove that the
nomination of R-1 was improperly
accepted ? .... No.
(4) Does the petitioner prove that the
result of election has been
materially affected by improper
acceptance of the nomination of R-1 ? .... Does not
survive.
(5) Does the petitioner prove that the
election of R-1 is liable to be
declared void under Section
100(1)(d)(i) of the Representation
of the People Act, 1951 ? .... No.
(6) Does the petitioner prove that R-1
incurred election expenses more than
the prescribed limit of Rs. 10 lacs
and thereby committed corrupt
practice under Section 123(6) of the
Representation of the People Act, 1951 ? .... No.
(7) Does the petitioner prove that R-1
hosted mass feeding to the voters
inducing them to vote for R-1 and
thereby indulged in corrupt practice
of bribery under Section 123(1)(A)(b)
of the Representation of the People
Act, 1951? .... No.
(8) Whether the election of R-1 is liable
to be declared void under Section
100(1)(b) of the Representation of the
People Act, 1951 ? .... No.
(9) Whether R-2 is entitled to be declared
to have been duly elected? .... Does not
survive.
(10) What order ? .... The petition is
dismissed.
R E A S O N S
14. The petitioner examined 12 witnesses including himself as PW1 in support of the allegations made in the petition. R-1 examined three witnesses including his election Agent as RW3. R-1 did not examine himself. Other respondents did not adduce oral evidence.
15. I have heard Shri S.M. Ghare, Advocate for the Petitioner; Shri K. H. Deshpande, Senior Advocate with Shri R.K. Deshpande, Advocate for Respondent No. 1; Shri G.D. Sule, Advocate for Respondent No. 2; Shri V.G. Bhamburkar, Advocate for Respondent No. 4 and Shri A.G. Mujumdar, AGP for Respondent No. 10. After going through the oral and documentary evidence and considering the submissions made by the learned Counsel for the parties, I have recorded my findings on the issues for reasons as under:
16. As to issue No. 1 (a)(b) to No. 5 :-The first ground on which the petitioner has challenged the election of R-1 is improper acceptance of his nomination paper by R-10. Before examining this ground it would be necessary to consider the legal position about election law as brought out by the Apex Court in various leading cases as under:
(1) In Jyoti Basu v. Devi Ghosal , the Apex Court observed that:
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodies. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait-jacket
(2) In C. Narayanaswamy v. C.K. Jaffer Sharief and Ors. with Pramila Nesargi (Smt) v. C.K. Jaffer Sharief and Ors. 1994 Supp. (3) Supreme Court Cases 170, the Apex Court observed that: It is true that right to elect or to be elected is a pure and simple statutory right and in the absence of the statutory provision neither a citizen has a right to elect nor has he a right to be elected, because such right is neither a fundamental right nor a common law right. The same is the position so far as the right to challenge an election is concerned. It flows from the provisions of the Act itself. As such, the right of a person to question the validity of an election is dependent on the conditions prescribed in the different sections of the Act and the rules framed thereunder.
(3) In Gajanan Krishnaji Bapat and Anr. v. Dattaji Raghobaji Meghe and Ors. , the Apex Court observed that:
The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the Act.
17. Chapter XV of the Constitution of India deals with elections to Parliament, to the Legislature of every State and of elections to the Offices of the President and Vice-President held under the Constitution. Article 324 provides that the superintendence, directions and control of the preparation of the electoral rolls for and the conduct of, all elections shall be vested in a Commission referred to as the Election Commission. Article 327 provides that Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with elections. Article 329(b) bars interference by Courts in electoral matters and provides that no election to either House of Parliament or to the House or either House of the Legislature of State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 246 read with Item No. 72 in the Union list given in the 7th Schedule provides that Parliament has exclusive power to make laws with respect to elections to Parliament, to the Legislature of States and to the office of President and Vice-President.
18. In pursuance of its power the Parliament enacted the Representation of the People Act, 1951 to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Part V of the said Act deals with conduct of elections. Chapter 1 of Part V relates to nomination of candidates. Section 33 of the Act deals with presentation of nomination paper and requirements for a valid nomination. Sub-section (1) of Section 33 reads as under:
On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O.clock in the forenoon and three O. clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Section 36 provides for scrutiny of nomination. It reads as under:
Section 36. Scrutiny of nomination
(1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint, and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:
Articles 84, 102, 173 and 191, Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963; or
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(c) that the signature of candidate or the proposer on nomination paper is not genuine. the the
(3). XXXXXXXX
(4). The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5). The returning officer shall hold the scrutiny on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control.
Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
(7) XXXXXXX
(8) XXXXXXXXX.
19. The Conduct of Elections Rules 1961, were framed by the Parliament. Rule 4 thereof provides that every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2-A to 2-E as may be appropriate. Form 2-B relates to the election to the Legislative Assembly. It contains Part I to VI. It would be seen that Form 2-B does not call upon the candidate to give his antecedents regarding pending prosecution and conviction; details of the movable and immovable assets of the candidate, his spouse and his dependents (if any); liabilities and educational qualification.
20. Association for Democratic Reforms preferred Writ Petition No. 7257/1999 before the High Court of Delhi for direction to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of the Conduct of Election Rules, 1961. The Law Commission of India at the request of the Government of India had undertaken comprehensive study of the measures required to expedite hearing of election petitions and to have a thorough review of the Representation of the People Act, 1951 so as to make the electoral process more fair, transparent and equitable. The Law Commission made recommendation for debarring a candidate from contesting an election if charges have been framed against him by a Court in respect of certain offences and necessity for a candidate seeking to contest election to furnish details regarding criminal cases, if any, pending against him. It also suggested that true and correct statement of assets owned by the candidate, his/her spouse and dependent relations should also be disclosed. It was contended by the petitioner that despite the reports of Law Commission and Vora Committee, the successive Governments failed to take any action. Hence petition was filed for implementation of the said reports and for a direction to the Election Commission to make mandatory for every candidate to provide information by amending Form 2-A to 2-E prescribed under the Conduct of Election Rules, 1961.
21. The High Court by judgment dated 2.11.2000 held that it is the function of the Parliament to make necessary amendments in the Representation of the People Act,1951 or the Election Rules. However, the High Court considered whether or not an elector, a citizen of the country has a fundamental right to receive information regarding the criminal activities of a candidate to the Lok Sabha or the Legislative Assembly for making an estimate for himself as to whether the person who is contesting the election has a background making him worthy of his vote., by peeing into the past of the candidate. The High Court held that for making a right choice, it is essential that the past of the candidate should not be kept in the dark as it is not in the interest of the democracy and well being of the country. The High Court directed the Election Commission to secure to voters the following information pertaining to each of the candidates contesting election to the Parliament and to the State Legislature and the parties they represent:
1. Whether the candidate is accused of any offence (s) punishable with imprisonment? If so, the details thereof.
2. Assets possessed by a candidate, his or her spouse and dependent relations.
3. Facts giving insight to candidate.s competence, capacity and suitability for acting as parliamentarian or legislator including details of his/her educational qualifications.
4. Information which the election commission considers necessary for judging the capacity and capability of the political party fielding the candidate for election to Parliament or the State Legislature.
22. The order of the High Court was challenged by Union of India by preferring Civil Appeal No. 7178/2001 before the Supreme Court. Peoples Union for Civil Liberties filed Writ Petition No. 294 of 2001 under Article 32 of the Constitution praying that writ, order or direction be issued to the respondents
(a) to bring in such measures which provide for declaration of assets by the candidate for the elections and for such mandatory declaration every year during the tenure as an elected representative as MP/MLA;
(b) to bring in such measures which provide for declaration by the candidate contesting election whether any charge in respect of any offence has been framed against him/her; and
(c) to frame such guidelines under Article 141 of the Constitution by taking into consideration 170th Report of Law Commission of India.
23. The Supreme Court decided Civil Appeal No. 7178/2001 and Writ Petition No. 294/2001 by common order dated 2.5.2002 reported in AIR 2002 Supreme Court 2112. The Supreme Court summed up the legal and constitutional position as under:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation of plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite of situations that many emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary direction, Commission can fill the vacuum till there is legislation on the subject.
3. The work 'elections' includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion.
4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy.
6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter.s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter.s (little man-citizen.s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers.
24. Ultimately the Supreme Court held that it cannot be said that the directions issued by the High court are unjustified or beyond its jurisdiction. However, considering the submissions made by the learned Counsel for the parties at the time of hearing, the Supreme Court modified the said directions as under:
The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged or any criminal offence in the past-if any, whether he is punished with imprisonment or fine ?
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependents.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
(5) The educational qualifications of the candidate.
In the result Civil Appeal No. 7178/2001 was partly allowed and Writ Petition No. 294/2001 was allowed to the extent aforesaid.
25. In pursuance of the said directions, the Election commission of India issued order dated 28.6.2002. Para No. 14 of the said order reads as under:
14. Now, therefore, the Election Commission, in pursuance of the above referred order dated 2nd May, 2002 of the Hon.ble Supreme Court and in exercise of the powers conferred on it by Article 324 of the Constitution of superintendence, direction and control, inter alia of conduct of elections to Parliament and State Legislatures hereby direct as follows:
(1) Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to all the five matters specified by the Hon.ble Supreme Court and quoted in para 5 above, in an affidavit, the format whereof is annexed hereto as Annexure-1 to this order.
(2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.
(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon.ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non- furnishing of the affidavit.
(4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him.
Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summery inquiry conducted by him at the time of scrutiny of nominations under Section 36(2) of the Representation of the People Act, 1951 and only the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of substantial character.
(5) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media.
(6) If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above.
26. On 24.8.2002 the Representation of the People (Amendment) Ordinance, 2002 was promulgated by the President of India. Peoples Union for Civil Liberties, Lok Satta and Association for Democratic Reforms challenged the validity of the Ordinance by Writ Petition Nos. 490, 509 and 515 of 2002 before the Supreme Court. During the pendency of those writ petitions, the Ordinance was repealed and on 28.12.2002 the Representation of the People (3rd Amending) Act came into force with retrospective effect. Section 33A (Right to information) and Section 33B (Candidate to furnish information only under the Act and the Rules) were inserted in the Representation of the People Act, 1951 by the said amendment. The petitioners were allowed to challenge the validity of Section 33-B of the Amended Act. The Supreme Court decided those writ petitions by common order dated 13.3.2003 which is reported in AIR 2003 Supreme Court 2363.
27. Hon.ble Mr. Justice M.B. Shah summarised the legal position in para 81 of the said judgment as under:
(A) The legislature can remove the basis of a decision rendered by a competent Court thereby rendering that decision ineffective but the legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Court. A declaration that an order made by a Court of law is void is normally a part of the judicial function. Legislature cannot declare that decision rendered by the Court is not binding or is of no effect.
It is true that legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision. This exercise of power is subject to constitutional provision, therefore, it cannot enact a law which is violative of fundamental right.
(B) Section 33-B which provides that notwithstanding anything contained in the judgment of any Court or directions issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Act or the Rules made thereunder, is on the face of it beyond the legislative competence, as this Court has held that voter has a fundamental right under Article 19(1)(a) to know the antecedents of a candidate for various reasons recorded in the earlier judgment as well as in this judgment.
Amended Act does not wholly cover the directions issued by this Court. On the contrary, it provides that candidate would not be bound to furnish certain information as directed by this Court.
(C) The judgment rendered by this Court in Association for Democratic Reforms (supra) has attained finality, therefore, there is no question of interpreting constitutional provision which calls for reference under Article 145(3).
(D) The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate, the directions given by this Court are against the statutory provisions are, on the face of it, without any substance. In the election petition challenging the validity of an election of a particular candidate, the statutory provisions would govern respective rights of the parties. However, voters. fundamental right to know antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.
(E) It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. During last more than half a decade, it has been so done by this Court consistently. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court.
28. In the result the Supreme Court held Section 33-B of the Amended Act to be illegal, null and void.
29. Before parting with the case, the Supreme Court dealt with an aspect in respect of certain directions issued by the Election Commission by its order dated 28.6.2002. It was urged before the Supreme Court that Direction No. 4 in para 14 is beyond the competence of the Election Commission. In this respect the Supreme Court held in para No. 76 as under:
While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Association for Democratic Reforms case, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, can not be justified. In the case of assets and liabilities, it would be very difficult for the returning officer to consider the truth or otherwise of the details furnished with reference to the 'documentary proof' Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector.s version. It is true that the aforesaid directions issued by the election Commission is not under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Association for Democratic Reforms case (supra) and as provided under the Representation of the People Act and its 3rd Amendment.
30. Hon.ble Mr. Justice P. Venkatarama Reddi added his separate opinion and gave summary of his conclusions in para 129 as under:
.(1) Securing information on the basic details concerning the candidates contesting for elections to the Parliament or State Legislature promotes freedom of expression and, therefore, the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, through to certain extent, there may be overlapping.
(2) The right to vote at the elections to the House of People or Legislative Assembly is a constitutional right but not merely a statutory right: freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
(3) The directives given by this Court in Union of India v. Association for Democratic Reforms were intended to operate only till the law was made by the Legislature and in that sense 'pro tempore' in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.
4. The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.
(5) Section 33-B inserted by the Representation of the People (3rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.
(6) The right to information provided for by the Parliament under Section 33A in regarding to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter /citizen. However, there is no good reason or excluding the pending cases in which cognizance has been taken by Court from the ambit of disclosure.
(7) The provision made in Section 75A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Art. 19(1)(a).
(8) The failure to provide for disclosure of educational qualification does not in practical terms, infringe the freedom of expression.
(9) The Election Commission has to issue revised instructions to ensure implementation of Section 33A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission.s orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, direction No. 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced.
31. Hon.ble Mr. Justice D.M. Dharmadhikari in para No. 137 agreed with the Conclusions (A) to (E) of Mr. Justice M.B. Shah and conclusion Nos. (1), (2), (4),(5), (6), (7) and (9) of Mr. Justice Pv. Reddi.
32. In pursuance of the said judgment, the Election Commission of India issued revised directions by its order dated 27.3.2003 in supersession of its earlier order dated 28.6.2002. Para 16 thereof reads as under:
(1) Every candidate at the time of filing his nomination paper for the elections to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to the matters specified by the Hon.ble Supreme Court and quoted in paras 13 and 14 above in an affidavit, the format whereof is annexed hereto as Annexure -1 to this order.
(2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.
(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon.ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit.
(4) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media.
(5) If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above.
The Election Commission made certain clarification in para 17 as under:
For the removal of doubt, it is hereby clarified that the earlier direction contained in para 14 (4) of the earlier order dated 28th June, 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information is not enforceable in pursuance of the order dated 13th March,2003 of the Apex Court. It is further clarified that apart from the affidavit in Annexure-1 hereto referred to in para 16 (1) above, the candidate shall have to comply with all the other requirements as spelt out in the Representation of the People Act, 1951, as amended by the Representation of the People (Third Amendment) Act,2002 and the Conduct of Election Rules, 1961, as amended by the Conduct of Elections (Amendment) Rules, 2002. Para 19 of the said Order is to the effect that all Returning Officers shall ensure that the copies of the affidavit prescribed herein by the Commission shall be delivered to the candidates along with the forms of nomination papers as part of the nomination paper.
33. In addition to the revised directions by its order dated 27.3.2003, the Election Commission issued Hand Book for Returning Officers in 2004. Chapter V of the said Hand Book relates to nomination and Chapter VI relates to scrutiny thereof. Since the Hand Book is in the nature of executive instructions to the Returning Officers, we need not detain ourselves for considering them.
34. Basing his argument on the judgments referred to above settling the long drawn battle about fundamental right to information of the elector, Shri S.M. Ghare, the learned Counsel for the petitioner, submitted that the forms of affidavit prescribed by the Election Commission are the integral part of the nomination paper. Section 33(1) of the Act mandates that a nomination paper should be completed in the prescribed form. Sub-section (4) of Section 36 of the said Act says that the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a substantial character which in turn means that a nomination may be rejected on the ground of any defect which is of a substantial character. Shri Ghare submitted that if the candidate gives wrong information or suppresses material information about his assets in the prescribed form of the affidavit, the nomination form cannot be rejected. However incomplete information is saved, which means that if incomplete information is given in the prescribed form of the affidavit regarding assets, the nomination form is liable to be rejected.
35. In this respect Shri Ghare relied on Dharamsingh v. Harisingh wherein non-supply of postal address of the candidate or supplying cryptic address which virtually amounts to non-supply of address was held as failure to comply with the provisions of Section 33(1) and consequently the nomination paper was held to be validly rejected.
36. At this stage it would be worthwhile to look into the affidavit (Exh.36) filed by R-1 with the nomination paper. R-1 has mentioned in Form B the details of immovable assets as under:
________________________________________________________________________
S. Description Self Spouse(s) Dependents
No. Name(s) Name:
________________________________________________________________________
(i) Agricultural Land 15,09,000.00 12,16,850.00 --
- Locations (s) (As per (As per
- Survey Numbers (s) Annexure Annexure
- Extent (Total "E") "E")
measurement)
- Current Market value
(ii) Non-agricultural land NIL 1,14,000.00 --
- Locations (s) (As per (As per
- Survey Numbers (s) Annexure Annexure "F")
- Extent (Total "F")
measurement)
- Current Market value
(iii) Buildings (Commercial 62,83,479.00 1,90,63,009.0 --
and residential (As per (As per
- Locations (s) Annexure Annexure "G")
- Survey Numbers (s) "G")
- Extent (Total
measurement)
- Current Market value
(iv) Houses/Apartments, etc. NIL NIL --
- Locations (s)
- Survey Numbers (s)
- Extent (Total
measurement)
- Current Market value
(V) Others Nil Nil --
(Such as interest in
property)
________________________________________________________________________
In Annexures E, F and G as regards R-1 (self) information is given as under:
Details of Immovable Assets
ANNEXURE 'E' : AGRICULTURE LAND
PARTICULARS AMOUNT (RS.)
Agriculture Land at Wadoda 1023000.00
(Kh.No. 106/1, 107/1, admeasuring 7.16 Hector)
Agriculture Land at New Delhi 486000.00
------------
1509000.00
============
ANNEXURE 'F' : NON- AGRICULTURE LAND NIL
ANNEXURE 'G' : BUILDINGS (COMMERCIAL & RESIDENTIAL)
PARTICULARS AMOUNT (RS.)
RESIDENTIAL PROPERTY
At Kotwal Nagar, Nagpur. 3623027.00
PROPERTIES AT NEW DELHI
Share in Residential property
in Green Park, New Delhi 980000.00
Residential Flat at Green Park 1500000.00
New Delhi ---------- 2480000.00
OTHER PROPERTIES
Flat at Worli Sagar Co-operative Society 180452.00
(At Vaitrana)
------------
6283479.00
============
In Annexures E, F and G as regards Smt. Abha Satish Chaturvedi (spouse of R-1) information is given as under:
Details of Immovable Assets
ANNEXURE 'E' : AGRICULTURE LAND
PARTICULARS AMOUNT (RS.)
Agriculture Land at Wadoda
(Kh.No. 92/1, 98/1 admeasuring 3.94 Hector) 1216850.00
-------------
1216850.00
=============
ANNEXURE 'F' : NON- AGRICULTURE LAND
PARTICULARS AMOUNT (RS.)
Agriculture Land at Suraburdi 114000.00
------------
114000.00
============
ANNEXURE 'G' : BUILDINGS (COMMERCIAL & RESIDENTIAL)
PARTICULARS AMOUNT (RS.)
RESIDENTIAL PROPERTY
At Kotwal Nagar, Nagpur. 10418076.00
Block at Nagpur (Pritam Builders) 1503625.00
Flat 1268288.00
Property at Vrindavan 807020.00
PROPERTIES AT NEW DELHI
Share in Residential property
in Green Park, New Delhi 980000.00
Residential Flat at Green Park 1500000.00
New Delhi ---------- 2480000.00
OTHER PROPERTIES
Flat at Bhamti Parsodi 2106000.00
Office Presimes at 220000.00
Shankarnagar
At Minimatanagar 260000.00
------------
2586000.00
------------
19063009.00
============
37. Thus it would be seen that in Annexure E pertaining to R-1 (self), two agricultural lands are described (i) at Wadoda Kh. No. 106/1, 107/1 admeasuring 7.16 hectares and (ii) at New Delhi. However, the survey number and area of the agricultural land at New Delhi is not given. As regards Annexure G, (1) residential property at Kotwal Nagar, Nagpur, (2) share in residential property in Green Park, New Delhi, (3) residential flat at Green Park, New Delhi and (4) Flat at Worli Sagar Co-operative Society are shown. The house numbers and area thereof are not mentioned. In Annexure F pertaining to the assets of Smt. Abha Satish Chaturvedi (spouse of R-1), agricultural land at Suraburdi is shown. However, its survey number and area is not mentioned. It may be noted that all this information must be within the knowledge of R-1.
38. The evidence of PW6 Ku. Shanta d/o Bakaram Masram shows that she is serving as Estate Manager in the Nagpur Housing and Area Development Board, Nagpur. She has to look after the work right from issuing advertisement about flats till the flats are allotted and even thereafter till execution of the sale deeds in favour of the allottees. She brought the file of allotment in respect of Flat No. 26/3 in 120 H.I.G. known as Priyadarshani Colony near R.T.O. at mouza Gadga (Nagpur). As per the record the said flat has been allotted to R-1 on 25.5.1987 in the category of Member of Legislative Assembly. Exh.72 is the allotment letter in favour of R-1. During cross-examination PW6 stated that no sale deed is registered in favour of any of the housing societies. She further admitted that the building in which the said flat is located, is still owned by the Board and the ownership thereof has not yet been transferred. The allottees are liable to pay ground rent and service charges and Corporation taxes. From her evidence it is apparent that though no formal sale deed is executed in the name of R-1 in respect of flat No. 26/3, R-1 is the occupier thereof. So he ought to have shown the said flat in the prescribed form meant for immovable assets.
39. PW7 Pralhad Deorao Suradkar is the Tax Superintendent in Property Tax Recovery Department of Nagpur Municipal Corporation. It is PW7 who supplied information vide Exh.77 to the petitioner in respect of House No. 339/A/203 in Ward No. 66 which is to the effect that R-1 is the occupier thereof and property tax of Rs.69,070/ + Rs.5909/-total Rs.74,979/-for the period from 1.4.1987 to 31.3.2005 is due against R-1. During cross-examination PW7 Suradkar admitted that R-1 preferred objection (Exh.79) to the said assessment. He further admitted that notice dated 12.9.1988 (Exh.78) was issued to the Nagpur Housing and Area Development Board in respect of tax for the period from 1.7.1985 to 30.6.1987 and the Board filed objection dated 15.7.1989 (Exh.79) objecting the assessment. PW7 Suradkar is not in a position to state whether the said objection is decided.
40. In the prescribed form (Exh.36) filed with the nomination paper R-1 mentioned in Sr.No. (iv) that no property tax was outstanding against him. Thus R-1 has suppressed the fact of assessment of tax and objection preferred by him thereon.
41. It was vehemently urged by Shri K.H. Deshpande, the learned Senior Advocate for R-1, that under Section 36(2)(b) of the Act only failure to comply with the provisions of Section 33 (requirements of a valid nomination) or Section 34 (deposits) can be a ground for rejection of nomination. The said Section does not mention non-compliance of Section 33A or the directives issued by the Election Commission, as a ground for rejecting nomination. Shri Deshpande, therefore, submitted that the so- called incomplete information in the affidavit (Exh.36) of R-1 regarding assets of himself and his spouse is of no consequence and on that count the nomination of R-1 was not liable to be rejected. He submitted that R-10 rightly accepted the nomination of R-1. It was urged by Shri Deshpande that firstly there is no wrongful acceptance of nomination paper of R-1 by R-10. Even if it is held that it is so, at the most it would be merely an irregularity which cannot be a ground for rejection of nomination of R-1 and for invalidating his election.
42. It is true that neither Section 33A nor the directives issued by the Election Commission are mentioned in Section 36(2)(b) as a ground for rejection of a nomination. However, it must be remembered that the directions were issued by the Election Commission upon the interpretation of Article 324 of the Constitution by the Supreme Court in order to fill in the vacuum left by the Parliament. As such the directions issued by the Election Commission have the force of law. The question is whether compliance with the directions of the Election Commission is mandatory or directory. The test to determine this depends on the consequences of failure to comply with the directions. If the consequences are penal in nature, the directions would be mandatory and if no consequences would ensue on failure to comply with the directions they are merely directory. In this respect the directions in para 14 (3) and (4) of the order of the Election Commission dated 28.6.2002 are required to be seen. Para 14 (3) shows that:
(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon.ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non- furnishing of the affidavit.
Para 14 (4) shows that:
(4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him.
Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summery inquiry conducted by him at the time of scrutiny of nominations under Section 36(2) of the Representation of the People Act, 1951 and only the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of substantial character.
43. After the second judgment by the Supreme Court the Election Commission issued revised directions by order dated 27.3.2003. The directions in para 16 (3) and clarification in para 17 is important. Para 16 (3) provides that:
(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon.ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit.
Para 17 reads:
For the removal of doubt, it is hereby clarified that the earlier direction contained in para 14 (4) of the earlier order dated 28th June, 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information is not enforceable in pursuance of the order dated 13th March,2003 of the Apex Court. It is further clarified that apart from the affidavit in Annexure-1 hereto referred to in para 16 (1) above, the candidate shall have to comply with all the other requirements as s pelt out in the Representation of the People Act, 1951, as amended by the Representation of the People (Third Amendment) Act,2002 and the Conduct of Election Rules, 1961, as amended by the Conduct of Elections (Amendment) Rules, 2002.
44. It is thus apparent that by the revised directions the instructions contained in para 14 (4) of the earlier order of the Election Commission were deleted. So now only non-furnishing of the affidavit by a candidate shall be considered to be violation of the order of the Supreme Court and the nomination of the candidate concerned shall be liable to be rejected for non-furnishing of the affidavit. However, furnishing of wrong information or suppressing material information would not be considered enough for rejecting the nomination paper. It is thus apparent that the direction to give details of immovable assets of the candidate, his spouse or his dependents is merely directory and not mandatory.
45. It may further be seen that in Bengal Immunity Company v. State of Bihar Hon.ble Mr. Justice S.R. Das, C.J. held at page 664 as follows:
It is sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon.s case was decided that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st-What was the common law before the making of the Act,
2nd-What was the mischief and defect for which the common law did not provide,
3rd-What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and
4th-The true reason of the remedy;
and then the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief and 'pro privato commodo' and to add force and life to the cure and remedy according to the true intent of the makers of the Act 'pro bono publico'.
46. In the aforesaid case the Supreme Court was construing the provisions of Article 286 of the Constitution of India. After referring to the state of law prevailing in the provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter-state trade and commerce by indiscriminate exercise of taxing power by different provincial legislatures founded on the theory of territorial nexsus Hon.ble Mr. Justice S.R. Das, C.J. held at page 674 as follows:
It was to cure this mischief of multiple taxation and to preserve the free flow of inter-state trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution -maker adopted Article 286 in the Constitution.
47. Applying the said principle of construction to the facts of the present case, it can be seen that in the earlier directions issued by the Election Commission on 28.6.2002 furnishing of any wrong or incomplete information or suppressing any material information by a candidate was to ensue a serious consequence of rejection of his nomination. The Supreme Court in Peoples Union for Civil Liberties v. Union of India in para No. 76 observed that the Election Commission is required to revise its instructions in the light of directions issued in Union of India v. Association for Democratic Reforms .
Accordingly the Election Commission issued revised directions on 27.3.2003 by which it has been clarified that the earlier directions contained in para No. 14 (4) of the order dated 28.6.2002 in so far as verification of assets and liabilities by means of summary inquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information is not enforceable in pursuance of the judgment of the Supreme Court dated 13.3.2003. It is thus clear that the serious consequence of rejection of the nomination paper of the candidate as contemplated in para No. 14 (4) of the earlier directions dated 28.6.2002 of the Election Commission was sought to be modified by the Election Commission by para No. 17 of its revised directions dated 27.3.2003 so as to bring those directions in consonance with the observations of the Supreme Court in para No. 81 of the judgment in Peoples Union for Civil Liberties. case (supra). Applying the test laid down by the Supreme Court in Bengal Immunity Company.s case (supra) to the facts of the present case, I am of the opinion that furnishing incomplete information or suppressing material information in the affidavit (Exh.36) by R-1 does not entail the consequence of rejection of his nomination paper.
48. It was vehemently urged by Shri Ghare, the learned Counsel for the petitioner, that by its earlier order dated 28.6.2002 the Election Commission had directed rejection of the nomination paper in case of furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit where the same is considered by the returning officer to be a defect of substantial character. The Election Commission also directed that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summary inquiry conducted by him at the time of scrutiny of nominations under Section 36(2) of the Representation of the People Act 1951. However, while issuing direction on 27.3.2003 the Election Commission deleted this clause namely para 14(4) and clarified that in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information is not enforceable. Shri Ghare, emphasised on the saving of the word incomplete information. Shri Ghare submitted that furnishing of any wrong information or suppression of any material information by a candidate may not be capable of easy verification by the Returning Officer. However, furnishing of incomplete information is capable of easy verification by the Returning Officer. Hence, according to Shri Ghare, even after issuance of the revised directions, the nomination paper of R-1 was liable to be rejected under Section 36(2) of the Representation of the People Act, 1951 on account of failure to complete the prescribed form.
49. The above submission prima facie appears to be very attractive. However, if a closure look to the submission is given, it would be seen that anomalous situation would arise if the submission is accepted. If the candidate furnishes any wrong information or suppresses any material information, the nomination paper would not be liable to be rejected. But if the candidate furnishes incomplete information, it would result in rejection of the nomination paper. In fact, furnishing any wrong information or suppressing any material information is a more serious matter than furnishing incomplete information. The direction issued by the Election Commission cannot have the object behind it that a serious matter should go unpunished, whereas a matter which is not so serious, should attract a serious consequence. As such, the submission made by Shri Ghare is devoid of any merit and it needs to be rejected outright.
50. In the present case, it is not disputed that R-1 submitted affidavit in the prescribed form along with the nomination paper. The only thing is that he did not give complete information about the immovable assets of himself and his spouse and suppressed information about one flat and liability to pay Municipal taxes. However, on that count the Returning Officer could not have rejected a nomination paper of R-10. No fault can be found with the order of R-10 accepting the nomination of R-1. In view of this position, it cannot be said that there was wrongful acceptance of nomination paper of R-1.
51. Section 100(1)(d)(i) of the Act provides that if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination, the High Court shall declare the election of the returned candidate to be void. However, since in the present case I have come to the conclusion that there was no improper acceptance of nomination of R-1, the provisions of Section 100(1)(d)(i) of the Act would not be attracted and the election of R-1 on this count cannot be declared to be void.
52. As pointed out above, the Election Commission issued directions firstly on 28.6.2002 and thereafter issued revised directions on 27.3.2003. This was all in order to fill up the vacuum left due to non-legislation by Parliament. It is high time that the Parliament should consider amending the Representation of the People Act, 1951 by incorporating disqualification of the candidate for furnishing wrong or incomplete information and suppressing material information about the assets and liabilities of the candidate, his spouse and dependents. However, till then, the revised directions issued by the Election Commission on 27.3.2003 would hold the field and the Courts would not be able to disqualify a candidate in the absence of necessary legislation.
53. As to issue No. 6:-Another ground of challenge by the petitioner to the election of R-1 is that R-1 did not maintain correct account of the expenditure incurred or authorised by him or by his election agent during election period and R-1 suppressed expenditure on certain items in order to show that the election expenses are within the maximum limit prescribed under the rules. In fact, R-1 incurred huge expenditure far exceeding the maximum limit prescribed by the rules, thereby R-1 indulged in corrupt practice within the meaning of Section 123(6) of the Representation of the People Act, 1951.
54. Before we proceed to deal with this ground it would be beneficial to look into the law in this respect. Some legal principles have been evolved by the Apex Court in the following cases cited by the learned Counsel for the parties:
(1) Narbadaprasad v. Chhaganlal
(2) Hardwarilal v. Kawarsingh
(3) Raj Narayan v. Indira Gandhi
(4) Kavarlal v. Amarnath
(5) 1994 Suppl.(3) SCC 170 Narayanswami v. Jafar Sharif
(6) Gajanan Bapat v. Dattaji Meghe
(7) Jit Mohindersingh v. Harmindersingh
(8) Harishankar Jain v. Sonia Gandhi
(9) Kamalnath v. Sudesh Varma
(10) AIR 2002 Karnataka 145 Vijaykumar Khandre v. Prakash Khandre
(11) Mahadeorao Shivankar v. Ramratan.
(12) Harkiratsingh v. Amrindersingh
(13) SV Ramaraju v. N Jaya Raju
55. From the case law noted above the legal position that emerges is as under:
It must be borne in mind that the charge of corrupt practice is in the nature of quasi-criminal charge as its consequences is not only to render the election of the returned candidate void but in some cases even to impose disqualification for contesting next election and as an elector to vote. The trial of election petition is akin to trial of criminal charge and there would be presumption of innocence. The onus lies heavily upon the election petitioner to establish charge of corrupt practice. Charge of corrupt practice is to be equated with criminal charge and proof thereof would be not preponderance of probabilities as is in civil action but proof beyond reasonable doubt and if after balancing evidence advanced there still remains a little doubt in proving the charge, its benefit must go to returned candidate. Suspicion, however, strong cannot take place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Sometimes direct evidence about commission of corrupt practice may not be forthcoming or available and in that case, the charge may be proved by producing circumstantial evidence but the courts, in such cases insist, that each of the circumstances must be proved individually and all the circumstances put together must point unerringly only to the hypothesis of commission of the corrupt practice by the returned candidate and must not be capable of any other hypothesis consistent with innocence of the returned candidate.
56. The evidence led must not only be cogent and definite but it must establish definitely and to the satisfaction of court, the charge of corrupt practice. The law requires strict proof of the charge beyond reasonable doubt. The burden of proof is upon the petitioner and that burden does not shift. It is for election petitioner to examine witnesses to establish his case and he cannot raise a plea that returned candidate has not examined any witness which witness was essentially a witness to be examined by election petitioner. The election petitioner cannot derive his strength from the weakness of respondents. case.
57. The stage of returned candidate placing his version before the court and satisfying the court that he had not committed any corrupt practice and to adduce evidence reaches, if and when the election petitioner leads cogent and reliable evidence to prove the charges levelled against the returned candidate as only then can it be said that the former has discharged his burden. It means that if the petitioner fails to adduce such evidence which may persuade the court to draw a presumption in his favour, the returned candidate will not be required to discharge burden by adducing evidence in rebuttal.
58. Section 83(1)(a) of the Representation of the People Act, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies and Section 83(1)(b) of the Representation of the People Act, 1951 further mandates that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.
59. This means that each and every corrupt practice must be clearly and specifically pleaded and it should be complete in itself. No corrupt practice can be inferred by reading of a sentence here and there. The facts pleaded must, beyond reasonable doubt make out a cause of action for inquiry into such corrupt practice. If corrupt practice pleaded is open to two equal possible inferences, the pleadings of corrupt practice must fail.
60. Merely quoting the words of section like chanting of a mantra does not amount to stating material facts. Material facts include positive statement of facts as also statement of negative fact, if necessary. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. No amount of evidence can cure the basic defect in pleadings. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and the candidate from being taken by surprise. It is also necessary to bear in mind that the success of a candidate who has won the election should not be lightly interfered with. The Court shall be vigilant to see that setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large in as much as re-election involves an enormous load on the public funds and administration.
61. Chapter VIII of the Representation of the People Act, 1951 relates to election expenses. Sub-section 1 of Section 77 thereof mandates that every candidate at an election shall, either by himself or by his election Agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election Agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive. Sub-section 2 of Section 77 directs that the account shall contain such particulars, as may be prescribed. Sub-section 3 of Section 77 mandates that the total of the said expenditure shall not exceed such amount as may be prescribed.
62. Part VIII of the Conduct of Election Rules, 1961 relates to election expenses. Rule 90 thereof provides that the total of the expenditure of which account is to be kept under Section 77 and which is incurred or authorized in connection with an election in a State shall not exceed Rs. 10 Lacs in any one assembly constituency.
63. Section 78 of the Representation of the People Act, 1951 directs that every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate lodge with the District Election Officer an account of his election expenses which shall be a true copy of the account kept by him or by his election Agent under Section 77.
64. Sub-section 6 of Section 123 provides that the incurring or authorizing of expenditure in contravention of Section 77 shall be deemed to be corrupt practice for the purposes of this Act.
65. Section 100(1)(b) provides that if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election Agent or by any other person with the consent of a returned candidate or his election Agent, the High Court shall declare the election of the returned candidate to be void. It may be remembered that mere vague and general statement that the candidate and his workers with his consent spent money in election in excess of permissible limit would not be sufficient to constitute corrupt practice. 66. On the background of the above legal position, we will have to examine the pleading of the petitioner and the evidence adduced by the petitioner in support of the pleading. In pursuance of the legal provisions, R-1 has produced register of day to day accounts of his election expenditure (Exh.47) for the period from 22.9.2004 to 1.11.2004. The said register is signed by R-1 as well as his election Agent Deepak Kapse (RW-3). R-1 has also submitted account of his election expenses along with his affidavit dt. 3.11.2004 (Exh.48).
67. In para No. 34 of the petition, the petitioner has summarised the expenditure alleged to have been incurred by R-1 as below:
Rs. 6,714/- Expenses on workers gathering
Rs. 3,23,165/- On account of advertisements
Rs. 95,049/- On account of vehicles used by R-1
during election campaign
Rs. 86,100/- On account of pendal in front of campaigning office
at H.B. town
Rs. 83,400/- On account of pendal (dining hall) towards
rear side office at H.B. town
Rs. 32,69,500/- On account of hosting of food during
21.9.2004 to 13.10.2004 for 5000 persons
at H.B. town main campaigning office
Rs. 50,000/- On account of hosting of food at Memon Hall,
Satranjipura on 25.9.2004
Rs. 22,000/- On account of Generators used by
respondent No. 1 during his public rallies
and election campaign
Rs. 9,000/- On account of Flex and Banners.
---------------
Rs. 39,44,828/-
===============
68. According to the petitioner the above expenses have been incurred by R-1 in addition to the expenses of Rs.6,37,089/-shown by him in the statement of account (Exh.48). Thus, the total expenditure incurred by R-1 during election campaign comes to Rs.45,81,917/-.
69. The petitioner has, however, not adduced any evidence about the expenses at Sr.No. 1 (workers gathering), Sr. No. 3 (vehicles), Sr. No. 8 (Generators) and Sr. No. 9 (Flex and Banners). Hence, we need not consider those items. The petitioner has adduced evidence about the expenses at Sr.No. 2 (advertisements), Sr. No. 4 and Sr.No. 5 (front and rear pendals at election office at HB Town) and Sr. No. 6 and Sr.No. 7 (hosting of food at election office HB Town and Memon Hall, Satranjipura).
70. As regards advertisements in newspapers, the petitioner has examined himself as well as PW 10 Gajanan s/o Shankarrao Ranekar (Assistant Executive in Advertisement Department of 'Lokmat', Nagpur); PW 11 Omprakash s/o Kanhaiyyalal Shrivastav (Group Advertisement Manager of Advertisement Department in daily 'Hitvada', Nagpur) and PW 12 Satish s/o Purushottam Pimple (Marketing Manager and Circulation Manager in daily 'Deshonnati'). From their evidence it appears that every newspaper has published a Rate Card of its own for advertisement. As regards some newspapers the rates are prescribed per square centimeter and for some newspapers the rates are prescribed per column centimeter. The rates differ for front page, rear page and middle page. The rates also differ for black and white and colour advertisement. The advertisement is accepted either directly from the customer or through Agency. If the advertisement is accepted through Agency, Release Order is issued by the Agency containing all details regarding the advertisement to be published including the name of the party, the rate of advertisement, the date on which the advertisement is to be published etc. The Release Order is accompanied by the draft of the advertisement. After the advertisement is published, the Billing Department checks whether the advertisement is published as per the details given in the Release Order and thereafter bill is prepared.
71. Another important thing which has come out through evidence is that despite the rates given in the Rate Card, the rates for advertisement are also settled by negotiations. The negotiated rates need not be as per Rate Card. The Management can allow publication of advertisement entirely free of cost in some cases. It all depends upon the relations between the Management and the customer.
72. Shri Ghare, the learned Counsel for the petitioner, took great pains in scanning the evidence of these witnesses and preparing several charts about expenditure in respect of the advertisements published in daily Lokmat, daily Hitvada and daily Deshonnati during the election period by R-1 on the basis of following documents:
_________________________________________________________
Issue Release Bill Issue Release Bill
of Order of Order
News- News-
paper paper
_________________________________________________________
Exh.51 51-A 51-B to Exh.54 54-A 54-B
Exh.88 88-A 88-B to Exh.96 96-A 96-B
Exh.121 121-A 121-B to Exh.129 129-A 129-B
Exh.144 144-A 144-B to Exh.147 147-A 147-B
Exh.148 148-A 148-B to Exh.150 150-A 150-B.
_________________________________________________________
73. The main thrust of the submission of Shri Ghare is that Anup Publicity through whom the advertisement is published by R-1, charged lesser amount than the one mentioned in the Release Order. The bills in respect of the advertisement issued for R-1 are for lesser amount not only than the Rate Cards of the concerned newspaper (Exh.60) but also the rates approved by the Government (Exh.49). According to Shri Ghare, the difference of about Rs.2 lacs needs to be included in the expenses shown by R-1 over advertisement in the statement of account (Exh.48).
74. In this respect DW 3 Deepak s/o Wasudeorao Kapse (the election Agent of R-1) stated that it was his decision to give advertisement for R-1 through Anup Publicity. He (DW 3) used to give advertisement during election campaign to Anup Publicity. No advertisement was directly given to any newspaper. Anup Publicity used to give bill for advertisement to DW 3 and DW 3 used to make payment. He admitted during cross examination that advertisements for R-1 were published by him in several newspapers during election campaign. He admitted that he did not verify before payment whether centimeters mentioned in the bills (Exh.173 to 178) were correct or not. He is also unable to state whether the rates shown by Anup Publicity in the bills are less than Government rates. He admitted to have received letter dt. 19.10.2004 (Exh.177) sent by Audit Officer of Nagpur East Assembly Constituency, however, he does not remember whether he had sent reply to the said letter. It is obvious that RW3 tried to suppress the facts before the court rather than explaining them. I am not at all impressed by his testimony. His testimony is quite unsatisfactory and no reliance can be placed on it.
75. However, the petitioner cannot take advantage of the weakness of the evidence adduced by R-1. It is for the petitioner to prove as to what actual expenses were incurred by R-1 over advertisements in newspapers. For that purpose it was quite necessary for the petitioner to examine the representative of Anup Publicity. However, the petitioner did not examine anybody from Anup Publicity, so also the petitioner did not bring on record through the testimony of the representatives of various newspapers examined by him as to what actual payment was made by Anup Publicity to the respective newspapers for the advertisement published for R-1. The petitioner should have called for the office copies of receipts of payments. In the absence of receipts merely a guess work cannot be undertaken to calculate the expenditure that might have been incurred by R-1 for newspaper advertisement merely on the basis of the Rate Cards of the concerned newspaper or the so called rates approved by the Government. In my opinion the petitioner has utterly failed to plead and to establish the actual expenditure incurred by R-1 over newspaper advertisement.
76. Now let us consider about the alleged expenditure on the front and the rear pendol of the election office of R-1. It is not disputed that the election office of R-1 was on the first floor in a building situated in HB Town. It has come in the evidence of DW 3 Deepak Kapse that the hall which was taken for the election office of R-1 is owned by Dushant Chaturvedi (the son of R-1) and that no rent for the hall was charged. The existence of the pendols on the ground floor front side as well as rear side is not disputed. According to the petitioner the area of front pendol was 20 x 120 = 2400 sq.ft. and the area of rear pendol was 30 x 80 = 2400 sq. ft. According to the petitioner both the pendols were in existence for about 20 days. However, in the register of day to day account of election expenses (Exh.47) R-1 showed expenses of Rs.5,896/ of the front pendol only for a day i.e. on 26.9.2004 at Sr. No. 13 supported by voucher at Exh.171. In the same account the expenditure of Rs.6,400/ is shown for rear pendol for 10 days on 11.10.2004 at Sr.No. 145 supported by voucher at Exh.172. As stated earlier, the petitioner led evidence to show that the front pendol as well as rear pendol were in existence for 20 days and that as per minimum prescribed rate the expenditure of front pendol as well as rear pendol each comes to Rs.88,800/-. According to the petitioner excluding the expenses of Rs.2700/-shown by R-1 over front pendol, the expenditure of Rs.86,100/-is required to be added in the expenditure account of R-1, so also excluding Rs.5400/-shown for rear pendol, expenditure of Rs.83,400/-needs to be added in the expenditure of R-1.
77. The petitioner led evidence of PW 4 Nitin Rambhau Sathavane, PW 5 Mahendra @ Prakash Mahadeorao Raut and PW 8 Santosh Dashrath Yadav about the area and existence of those pendols. It may be noted that even according to the petitioner he never visited those pendols. At this stage suffice it to say that these witnesses are interested witnesses. Their evidence is not consistent with each other and their testimony does not inspire confidence.
78. The petitioner has not shown as to under what authority the District Election Officer prescribed schedule of rates for Maharashtra Assembly Election of 2004 (Exh.61). It is not known as to what procedure was adopted for fixing the schedule of rates. It is not known as to how the candidates are expected to spend on various items as per those rates. It seems that at the most the schedule of rates can be taken into consideration by the election authorities while checking the expenditure submitted by the candidates. Only for this restricted purpose, those rates might be looked into. They have no relevance while examining the expenditure alleged to have been incurred or authorised by the candidate or his election Agent.
79. Apart from giving full particulars about the existence of pendols, the petitioner should have examined the contractor, who erected those pendols in order to prove the expenses incurred by R-1 towards those pendols. In the absence of such evidence it cannot be said that the petitioner has discharged heavy burden lying upon him to prove the expenditure incurred by R-1 on pendols.
80. As to Issue No. 7 & 8 :-According to the petitioner, R-1 indulged in corrupt practice of bribery by offering mass feeding to poor voters at two places (i) at the rear pendol situated at his election office at HB Town from 21.9.2004 to 13.10.2004 where meals were hosted for about 5000 persons daily and (ii) on 25.9.2004 R-1 hosted dinner for about 1000 persons at Memon Hall, Satranjipura. The expenses incurred by R-1 for hosting meals were not shown in the statement of account submitted by him. According to the petitioner, R-1 must have incurred expenses of Rs.32,75,000/-as per the prescribed rate (in fact the correct figure should have been Rs. 28,75,000/-) for the mass feeding at rear pendol and Rs.50,000/-for the dinner hosted at Memon Hall. Thus, R-1 indulged in corrupt practice set out in Section 123(1)(A)(b) as well as Section 123(6) of the Representation of People Act, 1951.
81. The petitioner has examined PW 4 Nitin Sathavane, PW 5 Mahendra Raut and PW 8 Santosh Yadav in order to prove mass feeding at the rear pendol at HB Town. The petitioner has also examined PW 2 Raju Rupchandji Darode and PW 3 Sheikh Guddu Sheikh Mohd in order to prove hosting of dinner at Memon Hall. It may be noted that the petitioner neither visited the rear pendol on any day during the relevant period at HB Town nor did he visit Memon Hall on 25.9.2004.
82. The evidence of all these witnesses appear to be most unnatural. All of them appear to be chance witnesses. They are all interested in the petitioner in one way or the other. Their evidence is inconsistent with each other. Their evidence does not inspire confidence. Hence, they are not worthy of reliance to establish the charge of corrupt practice of mass feeding by R-1.
83. In order to discharge the burden heavily lying on him, the petitioner should have examined the caterer who was engaged for preparing food for more than 20 days and throughout the day on each day at election office at HB Town Hall. The petitioner should have adduced evidence as to who where the voters who took meals, who were the workers who served meals and who sought votes for R-1. Above all the petitioner should have adduced evidence to show that all this was with the consent and at the behest of R-1 or his election Agent. Same kind of evidence was required to be adduced by the petitioner as regards the gathering of Muslim Community at Memon Hall. The petitioner should have examined some Trustee of Memon Hall to show that the rent was paid by R-1. The petitioner should have examined the caterer, who prepared and served Mutton Biryani to the people, who attended the meeting. The petitioner should have adduced evidence showing that it was R-1 who incurred expenses for organizing the said gathering and offering dinner. All such evidence is lacking.
84. It has come in the evidence of the petitioner that on his complaint the election authorities had videographed the mass feeding at election office at HB Town Hall. However, no such evidence is led by the petitioner. In fact it would have corroborated the evidence of the petitioner's witnesses. In the absence of such evidence, it is not possible to hold that the petitioner has proved the alleged corrupt practice of hosting free food for the voters to solicit their votes and to have incurred huge expenditure over food.
85. In order to challenge the credibility of the petitioner, during cross examination his attention was drawn towards the Nandlal Committee Report dated 27.2.2001 (Exh.156-A) and Adtani-Madiwale Report dated 18.6.2001 (Exh.154-A).
86. The State Government had constituted One Man Enquiry Committee of Shri Nandlal, Principal Secretary (Forest), Revenue and Forest Department to inquire into the alleged irregularities in the functioning of the Nagpur Municipal Corporation, Nagpur. Item No. 12 in the said report relates to the execution of cement concrete road work without calling tenders in Shri Krishna Khopade (the petitioner.s) ward. It was concluded by the Commission that:
The Councillor Shri Krishna Khopade even though was not supposed to insist for a specific contractor to whom the work should be awarded he not only insisted to award the work to M/s Rajesh Constructions but also insisted to carry out the work under Government Special grant head even though there is no provision available under the said head. During the Inquiry then Mayor Shri Devendra Phadnavis confessed that Shri Krishna Khopade manipulated the file and obtained his signature on the said file after his Mayorship term was over by putting back date on the file. Since the work was already started under pressure he recommended the file by signing as Mayor even though he was not the Mayor at that time. Since the councillor has got some vested interest in the said work he must have resorted to the said manipulation for which both Shri Krishna Khopade and Shri Devendra Phadnavis are responsible.
87. Item No. 14 of the said report relates to the alleged irregularities in purchasing sports goods and improper distribution thereof. It was concluded that the councillors including the petitioner must have taken money from the suppliers without lifting the goods or they must have received other goods in lieu of sports goods for their own use. It was recommended that the said amount should be recovered from the councillors including the petitioner and action should be taken against them for deceiving the Corporation and misusing the corporation funds. It seems that in pursuance of the said recommendation Crime No. 8/2001 was registered at P.S. Sadar against several accused including the petitioner.
88. In pursuance of the High Court.s order dated 7.3.2001 in W.P. No. 3498/1993 the Municipal Commissioner assigned enquiry about the recruitment in respect of advertisement No. 274/JS/93 to Shri M.M. Adtani, Additional Municipal Commissioner, Nagpur Municipal Corporation, Nagpur and Shri A.T. Madiwale, Labour Officer, Nagpur Municipal Corporation, Nagpur. The said committee conducted detailed enquiry and submitted its report amongst other things to the effect that Shri Krishna Khopade (the petitioner) who was the member of the Selection Committee, selected his relatives and made their appointment.
89. From the above material, it was tried to be shown that the petitioner is not an honest Corporator and a trustworthy public figure. What-ever it might be, since the petitioner has failed to prove the allegations of the alleged corrupt practices against R-1, it is needless to dwell on this aspect.
90. Thus the petitioner has failed to prove that there was wrongful acceptance of the nomination paper of R-1, that R-1 indulged in corrupt practice by incurring expenditure more than the prescribed limit and by hosting free meals to the voters to solicit their votes in his favour. The petition, therefore, fails on all counts. Hence I pass the following order:
O R D E R
The petition is dismissed. However, in the circumstances of the case, the parties to bear their own costs.
The Registry is directed to intimate this decision to the Election Commission and the Speaker of Maharashtra Legislative Assembly along with an authenticated copy of this judgment, under Section 103 of the Representation of the People Act, 1951, immediately.
