Bombay High Court
Sou. Alka Vijayrao More vs The Collector on 25 November, 2011
Bench: G. S. Godbole
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ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1148 OF 2010
Sou. Alka Vijayrao More. ....Petitioner
Vs.
The Collector, Pune & ors. ....Respondents
Mr. Shriram Kulkarni, Advocate for Petitioner.
Mr. R.M. Patne, AGP for Respondent No. 1.
Mr. A.M. Kulkarni, Advocate for Respondent No. 3.
Mr. A.A.Kumbhokoni i/b. Mr. A.P. Kulkarni, Advocate for Respondent
Nos. 4, 5 & 7.
CORAM:- GIRISH GODBOLE, J
DATED:- NOVEMBER 25, 2011
ORAL ORDER
1. By order dated 27/9/2010 notice for final disposal was issued.
Accordingly, the Respondents are served. It is necessary to note that
Respondent No. 10 Mr. Ajit Anantrao Pawar was originally joined as
Respondent No. 10 in the Election Petition filed by the Petitioner. By the
interim order dated 2/9/2009 the said Respondent has been deleted from
the array of the parties temporarily at this stage of the proceedings. In
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view of this, the Respondent No. 10 in this Petition is also directed to be
deleted. In any case, the Respondent No. 10 is not contesting Respondent
as far as this Petition is concerned.
2. The Petitioner is the original Petitioner in the Election Petition filed
under section 144T of the M.C.S. Act, 1960. The Petitioner has made the
following avernments in the Election Petition which are relevant for the
purpose of this Petition.
"8)
The Petitioner submits that the Respondent No. 1, being
responsible for holding the elections of the Board of Directors of
the Respondent No. 3, is responsible for preparation of proper voter
list. The Respondent No. 2 was appointed by the Respondent No. 1
for discharging all the responsibilities of the Election Officer. The
Petitioner submits that the voters list were not duly updated and
there were a very large number of persons whose names were
appearing as voters in the voters list were long back dead. The
Petitioner is annexing hereto the voters list as Annexure-A. The
Petitioner is hereby annexing the various certificates issued by the
various Gramsevaks of the various Grampanchayat certifying the
names of the dead persons and the same annexed as Annexure B,
& D. The Petitioner submits that if the names of the dead persons
in these certificates are verified with the names appearing in the
voters list it is crystal clear that the names of dead persons were
included in the voters list and in fact voters were cast in the name
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of these dead persons.
12) The Petitioner submits that for the purpose of counting of
votes there were 38 tables. The counting of votes was not done
properly is as much as valid Ballot papers that had votes cast in
favour of the Petitioner were intentionally and deliberately
rejected. Not only that the votes that were actually cast in favour of
the Petitioner were wrongly recorded in favour of the successful
candidates. The Respondent No. 2 and his staff members have gone
to the extent of holding one vote of Ballot paper valid and rejecting
the other two votes on the same Ballot paper on some other ground.
This has further affected the election result as in some cases the
valid votes have been wrongly rejected and/or wrongly recorded
and some cases the valid votes have been counted. Also the total
number of votes counted on each table were written on papers and
was sent to the Respondent No. 2. However one Mr. Kiranraj
Yadav C.E.O of Baramati Municipal Council entered the same data
in the computer an instruction of Respondent No. 2 right under the
nose of the Respondent No. 2 was making wrong entries. The
Petitioner herself has evidenced this fact. The Petitioner as well as
her election agent and counting agents pointed this illegality to the
election officer but he refused to entertain the grievance of the
Petitioner. The Respondent No. 2 even did not accepted the
application of this Petitioner for recounting of votes which she had
demanded by bringing all the aforesaid illegalities in the procedure
of counting of votes.
13) The Petitioner submits that Mr. Nandkumar Katkar, the sub-
Divisional Officer, Baramati was no way concerned with this
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election of Karkhana. He was not a staff member appointed for the
purpose of counting of votes. However he was granted entry at site
of counting and the Respondent No.2 was functioning as per the
ultravires and directions of Mr. Katkar. When one Mr. Ranjan
Taware leader of "Shetkari Panel & a contesting candidate of Gat
No. 1 raised serious objection against this way of functioning of the
Respondent No. 2 he did not pay any attention to the objections
raised by the said person initially. After almost half of the counting
was over Mr. Katkar left the site of counting but till then the
damage was done. The Respondent No.2 was thus under the
influence and pressure of the Politically strong men of Baramati
Taluka who were using the Government Officials to achieve their
goals and the Respondent No.2 had become a puppet in their
hands.
14) The Petitioner submits that for the said elections there were
two panels namely "Shri Nilkantheshwar Panel" and "Shetkari
Panel". The Petitioner contested the election from Shetkari Panel
whereas the Respondent No. 4, 5, 7 (i.e. the successful candidate)
contested from Shri Nilkantheshwar Panel Respondent No.4
Respondent No. 5 and Respondent No. 7 also contested election
from Shri Nilkantheshwar Panel Respondent No. 4, 5 and 7 all got
elected as the members of the Board of Directors. The Respondent
No. 10 who is a Cabinet Minister in the Maharashtra Government
is a politically strong man in Baramati Taluka. He was the leader
of Shri Nilkantheshwar Panel and he canvassed and campaigned
extensively for his panel in this election. He addressed many public
meetings which were thickly attended by voters as well as other
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people. The Respondent No. 10 in his speeches had directly and
specifically threatened the voters by saying that he had means and
machinery to know and identify the ballot paper of the voters. He
further threatened the voters that once he identifies the Ballot
Boxes and the regions which voted against his panel then he would
take a serious note of the fact. The Respondent No. 10 had further
promised that those candidates of Nilkantheshwar Panel gaining
maximum victory margin from their respective constituencies,
would be rewarded by awarding the seat of co-opted director. The
Respondent No. 10 had made these statements in various public
meetings including the public meeting dt. 14/10/07 held at
Malegaon Budruk in the presence of all the candidates of Shri
Nilkantheshwar Panel and other persons present on the dias. The
Petitioner is annexing hereto a video coverage in the form of VCD
of this speech alongwith the transcription of this speech act as
Annexure E & F respectively. The Petitioner submits that such
hreats and inducing on the part of the Respondent No. 10 during
election campaigning amounts to corrupt practice as led down by
the said Act. The Petitioner states that the Respondent No. 10 was
thus threatening the voters that considering his post and influence
he is in a position to break the secrecy of voting and identify the
voters from their Ballot papers.
15. As a result the aforesaid illegalities committed by the
Respondent No. 1, 2 and 10 during the process of campaigning,
voting and counting the Petitioner though have secured sufficient
number of votes to be successful is shown as defeated and the
Respondent No. 4, 5 and 7 were wrongly shown as elected hence
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the Petitioner challenging the election of the Respondent No. 4, 5
and 7 on the following amongst other grounds that are taken
without prejudice to each other and also grounds to be argued.
(a) The defective voters list has resulted in appearing of names
of deceased persons in the voters list. Further more votes were cast
in the names of the deceased persons during polling.
.....
(e) Mr. Nandkumar Katkar, S.D.O. Baramati was illegally
granted entry in the hall where the counting of the votes was going
on & Mr. Katkar was giving directions to the Respondent No. 2 and
his staff during the counting process. Thus the Respondent No. 2
was influenced by the Government officer during the counting
process.
(f) Wrong entries were made in the computers in respect of the
votes counted in respect of the Petitioners and successful
candidates by the staff working under the Respondent No.2 and
even after bringing this to the notice of the Respondent No. 2 he
remained a silent spectator."
Needless to state that these allegations were denied by the contesting
Respondents. An Affidavit In Reply was also filed by the Returning
Officer Suresh Jadhav. Issues were framed. Thereafter he filed a detailed
written submission in the form of para-wise comments.
3. Before the commencement of actual oral evidence, Petitioner filed
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an application dated 16/12/2009 thereby requesting for issuance of
witness summons to the returning Officer so as to bring the list of voters
which is maintained as counterfoil and the counterfoils of Ballot papers (if
any) and the CDs' of the filming of the public speech given by Shri. Ajit
Pawar on 4/10/2007. Cameraman who has done that filming was also
sought to be summoned. Gramsevak of four villages were sought to be
summoned by directing them to bring the death register. One Suresh
Ingule, Member of the Managing Committee of Malegaon Cooperative
Sakhar Karkhana was sought to be summoned, so also Shri. Ranjan
Taware who was another Director was sought to be summoned. Shri. Ajit
Pawar was sought to be summoned. An audio expert was sought to be
summoned. Mahesh Kokare, Dattatray Bhosale, Sou. Sindhutai Taware,
Anita Wable were also sought to be summoned.
4. On 31/12/2009 the Petitioner filed Affidavit In Lieu of Examination
In Chief and on the same day various applications were filed. By the first
application which is at Exh. E, witness summonses were sought to be
issued to the concerned persons of sugar factory to bring the list of
deceased members. Witness summonses were sought to be issued to the
gramsevaks of 14 village panchayats to bring death register and death
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extracts of deceased members. On the same day another application was
filed, Exh. F (page 69), thereby calling upon the Respondent No. 2
Returning Officer to produce the list of voters actually used at the time of
voting indicating the names of voters who have voted and the list
containing the signatures of the voters who had voted and if there are any
counterfoils such counterfoils. A request was also made for directing the
Respondent No. 3 Karkhana to produce the list of deceased members.
Reliance was placed on Rule 56A(32) of the Rules. On the same day
another detailed application was filed (Exh. G pages 71-75) indicating the
reasons for summoning the various persons. This application was
essentially in the nature of an explanation of the earlier applications for
giving better particulars of the reasons as to why the various witnesses
were sought to be summoned.
5. Thereafter on 11/1/2010 another application was filed (Exh.
pages 76-77) calling upon the Respondent No. 2 to bring the video and
audio C.Ds particularly in respect of public speech delivered by Shri. Ajit
Pawar on 14/10/2007. Application was also made to issue a witness
summons to Respondent Nos. 2 and 3 to produce the original copy of
Application dated 20/10/2007 submitted by Shri. Ranjan Taware and other
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relevant documents. Prayer is also made to produce proforma ballot
paper.
6. All these Applications were opposed by the contesting Respondent
No. 3 by filing 2 replies. It was basically contended that the Respondent
No. 2 is not in possession of the Audio and Video C.Ds and that in any
case the said documents are not relevant. It was also contended that there
was a lack of proper pleadings. It was contended that in respect of
Suresh Ingule there was absolutely no pleadings in the Election Petition
and hence he cannot be summoned as a witness. Though the public
speech delivered by Shri. Ajit Pawar on 14/10/2007 was not disputed it
was contended that since he is not the elected person, such public speech
is irrelevant. As regards Mr. Mahesh Kokare it was submitted that there
are no averments in the pleadings. Same stand was taken in respect of
Sindhutai Tawre and Anita Wable. However, in respect of Dattatraya
Bhosale Respondent No. 3 stated "however, this Respondent has no
objection if he has been summoned as witness".
7. By the impugned Judgment and Order dated 27/1/2010 the
Additional Commissioner, Pune Division, Pune has considered all the
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applications together and save and except summoning Mr. Ranjankumar
Taware as a witness, all other prayers were rejected. In so far as the
C.Ds are concerned, the request for summoning Respondent No. 2 to
produce the CDs and summoning other witnesses namely photographer
and speech expertise etc. is rejected with a clarification that the Petitioner
can prove CDs in her possession. Similarly the Respondent No. 1 was
directed to produce on record the Application dated 20/10/2007 made by
Shri. Ranjankumar Taware and the reply given by the Returning Officer.
It is also necessary to note that in respect of the request for specimen
ballot paper no finding is recorded and the finding is reserved for being
recorded after obtaining necessary details from Respondent No. 2.
8. Mr. Kulkarni has invited my attention to the avernments in the
election petition, the Affidavit of Examination In Chief which was filed on
31st December, 2009 as also the detailed application dated 31/12/2009
which is at Exh. G pages 71-75. Mr. Kulkarni relies upon the Rule 76 of
the Maharashtra Specified Societies Election to Committee Rules, 1971
and submitted that the Commissioner had power to summon witnesses.
He submitted that in the original petition, there was sufficient pleadings
regarding voting in the name of dead persons and all the requisite
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particulars of such voters had been given in the Affidavit of Examination
In Chief and hence, applications could not have been rejected on the
ground that the applications were vague. He has drawn my attention to
the Rule 40 of the 1971 Rules and has submitted that if under the Rules,
there was no provisions for maintaining counterfoils of the ballot paper,
only on that ground request of production of the copy of the list of voters
set apart for the purpose under Rule 40(4) could not have been rejected.
He also invited my attention to sub rule 5 rule 40 and contended that the
reasoning given by the Commissioner was erroneous. In so far as the
prayer for production of CDs is concerned, Mr. Kulkarni submitted that
there was a positive assertion that the Returning Officer is in possession of
the CDs of the recording of speech of Shri. Ajit Pawar and since the
Respondent No. 2 Returning Officer had not denied this assertion, the
Commissioner was not justified in rejecting the application on the ground
that the 1971 Rules do not provide for such procedure. In respect of the
prayer for summoning Shri. Dattatraya Bhosale is concerned, it is pointed
out that even the contesting Respondents have noted no objection for
summoning Shri. Bhosale. In respect of prayer for summoning Shri.
Suresh Ingule, Mahesh Kokare, it was submitted by him that there was a
pleading that the counting agents of the Petitioner were present and it was
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not necessary to give their names in the election petition. Mr. Kulkarni
therefore prayed for setting aside of the order.
9. On the other hand, Mr. Kumbhakoni learned Senior Advocate
appearing for the contesting Respondent No. 3 and Mr. A.M. Kulkarni,
Advocate appearing for the Sugar Factory submitted that Election law is a
technical law. It was submitted that pleadings in the election Petition
were absolutely vague and there was a bald statement made about the
voting in the name of dead person but there was absolutely no pleadings
in the election petition. According to them since there was no factual
foundation laid in the election petition, the Commissioner was justified in
rejecting the applications for witness summons. In so far as summoning
Shri. Ajit Pawar and prayer for production of CDs is concerned, it was
submitted that there was no positive assertion that the Returning Officer
has done any video recording or tape recording and in the absence of any
such positive assertions, the Petitioner was not entitled to get an order of
production of these CDs.
10. I have considered the rival submissions. It is no doubt true that the
original application filed by the Petitioner on 16/12/2009 was rather vague
but the subsequent 3 applications dated 31/12/2009 were not vague and all
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the particulars about the reasons as to why a particular witness was being
summoned had been indicated. It is also necessary to note that on that
date a detailed Affidavit of Examination In Chief had already been filed
by the Petitioner and to that extent factual foundation had been laid. It is
pertinent to note that in the election petition as originally filed there were
sufficient pleadings about public speech given by Shri. Ajit Pawar at
Malegaon on 14/10/2007 and the video recording about that speech.
Though election law is technical, technicality cannot be stretched to such
an extent that it will become impossible to file an election petition. It is
settled law that a plaintiff or Petitioner is required to plead facts and not
required to plead about the evidence by which the facts are to be proved.
The evidence has to be led at the time of trial and in this case Affidavit of
Examination In Chief was filed on 31/12/2009. In so far as the dead
persons are concerned, in the Affidavit Of Examination In Chief the
avernments in paragraphs- 5, 6 and 7 give all the requisite particulars like
the names of the voters who had died, their serial numbers in the list of
voters, the dates of death (except in certain cases where no date of death is
mentioned) and the page numbers in the list of voters. Such particulars
are given for total of 179 voters. Thus particulars regarding dead persons
which are more than the difference of votes between the elected
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candidates and defeated candidates have been given.
11. In so far as the role played by Shri. Nandkumar Katkar and Kiran
Yadav is concerned, Mr. Kulkarni is justified in pointing out that in
paragraph-13 of the Election Petition as also in ground E and F a factual
foundation had been laid which would justify the summoning of the said
persons as witnesses. He is also justified in contending that even in the
Affidavit of Examination In Chief sufficient factual foundation has been
laid down in paragraphs-10 and 18 so as to warrant an order for issuance
of a witness summons. In so far as the CDs are concerned, it is pertinent
to note that the necessary avernments exist in the Petition, as also in the
application for directing production of the CDs. Learned Commissioner
has rejected the prayer for production of CDs essentially on the ground
that under the 1971 Rules there was no provision for videography or tape
recording of speeches. To the extent of recording under the 1971 Rules
they do not mandate Videography or tape recording of speeches and to
that extent the Additional Commissioner is right. However, this does not
mean that there is prohibition against making of such audio and video
CDs. In the Election Petition, the Petitioner has pleaded about the speech
of Shri. Ajit Pawar and about videography and tape recording. In the
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Affidavit and the applications more elaborate particulars were given. The
Respondent No. 2 has chosen not to file any reply to any of the
applications and it is not the case of the Respondent No. 2 that he is not in
possession of such CDs and audio tapes. I am of the opinion that the
Additional Commissioner has therefore committed an error in rejecting
prayer for direction to produce the CDs of audio and video film of the
speech of Shri. Ajit Pawar.
12.
In so far as the rejection of the prayer to summon Shri. Ajit Pawar
is concerned, virtually no reasons are recorded by the Additional
Commissioner. Since the allegation of corrupt practice has been made
against Shri. Ajit Pawar with specific reference to the speech delivered by
him on 14/10/2007, for the purpose of confronting him about the said
speech it was essential that the Additional Commissioner should have
summoned him to appear and depose on oath. As stated above I have not
been able to find out any reason as to why the request for summoning Mr.
Ajit Pawar has been rejected.
13. In so far as the request for summoning Dattatray Bhosale is
concerned, in fact the Respondent No.3 has specifically given no
objection for summoning the said witness in the reply. This request about
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Dattatraya Bhosale and similar request about Dr. Mahesh Kokate has been
rejected on the ground that there are no pleadings. In my opinion, there is
sufficient pleading in the Election Petition particularly in paragraph 12
about presence of the election agent and counting agent of the Petitioner.
Merely because their names had not been indicated in the election petition
that could not have been a ground for rejecting the application for issuing
witness summons to those persons.
14.
However, in so far as the witness by name Suresh Ingule is
concerned, apart from the fact that there is no factual foundation laid
down in the Election Petition, even the Application does not give any
particulars as to exactly on what point he was sought to be examined.
Statement made in the application in so far as Shri. Suresh Ingule is
concerned is rather vague.
15. In so far as the prayer for issuing witness summons to Sindhutai and
Anita is concerned, they were the defeated candidates and their presence
would certainly be necessary for throwing light on the happenings during
the course of election. However, it must be borne in mind that they are
opponents in the Election Petition and even though witness summons is
issued to them, they cannot be forced to depose.
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16. In so far as the prayer for issuing witness summons to various
gramseveks is concerned, in my opinion, sufficient factual foundation was
laid down in the original petition and once all the requisite particulars
were given in the Affidavit of Examination In Chief, there was no
justification for rejecting the prayer for summoning these witnesses. It is
no doubt true that the application dated 16/12/2009 was premature in the
sense that it was filed before filing Affidavit of Examination In Chief.
However, the subsequent application dated 31/12/2009 was filed after
giving all particulars of the voters who were allegedly dead. In my
opinion therefore the Additional Commissioner was not justified in
rejecting that prayer.
17. In so far as prayer for production of the original list of voters which
is retained by the Returning Officer under Sub-Rule 4 of Rule 40 is
concerned, one cannot lose sight of the fact that this is the only document
which is the most vital document so as to arrive at the truth as to whether
in fact dead persons have voted in the said election. On this list of
voters, an entry is made against the name of every voter to whom a ballot
paper is supplied in this election. There is no provision for maintaining a
counterfoil of the ballot paper. Hence, the list of voters maintained by the
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Returning Officer on which the requisite marks for handing over ballot
paper to an individual voters is the only document which will be crucial
for the purpose of enabling the Petitioner to prove her contention that
votes have been cast in the name of dead persons. This crucial aspect has
been completely overlooked by the learned Additional Commissioner who
has rejected the prayer essentially on the ground that under the 1971
Rules, no counterfoils of ballot papers are maintained. In my opinion,
while doing so, the learned Additional Commissioner has clearly
overlooked the averments and prayers in the application particularly in the
first application dated 16/12/2009 where specific prayer was made that the
list of voters on which entries regarding handing over of ballot papers are
made and signature or thumb impression of the voters is obtained should
be produced. The Additional Commissioner has also overlooked the
similar prayer which was made in the first application dated 31st
December, 2009.
18. However, in so far as the prayer of the Petitioner for issuing witness
summons to the Karkhana is concerned that may not be relevant for the
simple reason that from the list of voters maintained by the Returning
Officer under Rule 40(4) of the 1971 Rules and from the death registers
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maintained by the gramsevaks of the respective villages, which I am
inclined to allow, the factum of death of individual voters can be
established and the Tribunal can reach a correct factual finding as to
whether any vote was cast in the name of the persons who had died prior
to the date of polling.
19. It is now necessary to consider the last submission of Mr.
Kumbhakoni that this would infringe the secrecy of ballot. It is necessary
to note that in none of the applications a prayer for opening the ballot
boxes or ballot paper has been made. The stage for making such
application had not been reached and therefore no such prayer has been
made. Merely by directing the Respondent No. 2 Returning Officer to
produce the list of voters maintained under Rule 40(4), secrecy of the
ballot will not be infringed and only the fact as to which of the voters the
ballot paper was distributed by the Returning Officer would be revealed.
This does not amount to infringing secrecy of the ballot.
20. For the aforesaid reasons Writ Petition partly succeeds.
Applications filed by the Petitioner on 16/12/2009 and 31/12/2009 being
Exh. D, E, F, G and H in Election Petition No. 10/2007 are partly allowed.
The additional Commissioner should issue requisite witness summons
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save and except to Suresh Ingule and Malegaon Sakhar Karkhana which
prayer is rejected. Rule made absolute in the aforesaid terms with no
order as to cost. Mr. Kulkarni, Advocate for the Petitioner prays that in
the light of this order the Petitioner may be allowed to make proper
application for leading further evidence, if so advised. It is for the
Petitioner to make such an application to the Additional Commissioner
and it is for the Additional Commissioner to consider such an application
after hearing the Respondents. No opinion can be expressed on the
question of maintainability or otherwise of such an application and the
same is kept open for adjudication before the Commissioner.
21. At this stage, Mr. Kumbhakoni, Advocate appearing for the
contesting Respondents prays for staying this order for a period of 4
weeks. Mr. Kulkarni, Advocate for Petitioner strongly objects. However,
in the facts and circumstances of this case, the order shall remain stayed
for a period of 4 weeks.
(GIRISH GODBOLE, J)
