Bombay High Court
Manohar Dattatraya Bhadane vs Kunal(Baba) Rohidas Patil And ... on 26 October, 2015
Bench: M.T. Joshi
[1] EP / 14 / 2014 - JUDGMENT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ELECTION PETITION NO. 14 OF 2014
Shri Manohar S/o Dattatraya Bhadane,
Age : 48 years, Occu.: Agriculture,
R/o : At Post Nagaon,
Tq. and Dist. Dhule .. PETITIONER
Vs.
1] Shri Kunal (Baba) S/o Rohidas Patil,
Age : 40 years, Occu.: Business,
R/o : Gudutar, Tq. and Dist. Dhule
2] Shri Ajay S/o Govind Mali,
Age : 45 years, Occu.: Agriculture,
R/o : At Post Aklad,
Tq. and District Dhule
3] Shri Raj S/o Jaganath Chavhan,
Age : 46 years, Occu.: Agriculture,
R/o : 22, Sushil Nagar,
Golibar Tekade Road,
Tq. and District Dhule
4] Shri Kiran S/o Gulabrao Patil,
Age : 38 years, Occu.: Agriculture,
R/o : At Post Mehergaon,
Tq. and District Dhule
5] Shri Sharad S/o Madhavrao Patil,
Age : 55 years, Occu.: Agriculture,
R/o : House No.3, Kusumba,
Tq. and District Dhule
6] Shri Arun S/o Krishnarao Patil,
Age : 57 years, Occu.: Agriculture,
R/o : Plot No. 25, Trimbak Nagar,
Wadi Bhokar Road, Deopur, Dhule,
Tq. and District Dhule
::: Uploaded on - 26/10/2015 ::: Downloaded on - 27/10/2015 00:00:50 :::
[2] EP / 14 / 2014 - JUDGMENT
7] Shri Rajdeep S/o Bhattu Agale,
Age : 45 years, Occu.: Agriculture,
R/o : Plot No. 87-A, Vivekanand Nagar,
North Stadium, Gondur Air Port Road,
Valwadi Shivar, Tq. and Dist. Dhule
8] Shri Ambar S/o Mahadu Malicha,
Age : 35 years, Occu.: Agriculture,
R/o : At Post Mehergaon,
Tq. and District Dhule
9] Shri Dinkar S/o Sadashiv Mali,
Age : 40 years, Occu.: Agriculture,
R/o : Kapadne, Tq. And District Dhule
10] The Chief Election Commission,
Election Commission of India,
Nirwanchan Sadan, Ashoka Road,
New Delhi - 110 001
11] The Returning Officer,
For Election of Member of Maharashtra
Legislative Assembly, 2014 from
6-Dhule Gramin Assembly Constituency
Through Deputy Collector, Dhule,
Office of Deputy Collector, Dhule,
Tq. and District Dhule
[Respondent nos.10 and 11 deleted
as per Court's order dt. 27/8/2015]
12] The State of Maharashtra
Through the Secretary
Urban Development,
Mantralaya, Mumbai - 32. .. RESPONDENTS
----
Mr. V.D. Hon, Sr. Advocate with Mr. P.D. Bachate, Advocate
for the petitioner
Mr. P.M. Shah, Senior Advocate i/b. and with Mr. Shrikant S.
Patil, Advocate for respondent no.1
Mr. N.L. Choudhari, Advocate for respondent no.3
Mr. Santosh S. Patil, Advocate for respondent nos.4 and 5
::: Uploaded on - 26/10/2015 ::: Downloaded on - 27/10/2015 00:00:50 :::
[3] EP / 14 / 2014 - JUDGMENT
Mr. Y.B. Bolkar, Advocate for respondent no.6
Mr. P.D. Patil, Advocate for respondent no.7
Smt. R.K. Ladda, AGP for the respondent/State
None present for respondent nos.2, 8 and 9 though served.
- Respondent nos.10 and 11 deleted as per Court's order dated
27/8/2015
----
CORAM : M.T. JOSHI, J.
RESERVED ON : 16/10/2015
PRONOUNCED ON : 26/10/2015
JUDGMENT :
Heard both sides.
2. The present Election Petition is filed to seek
a declaration that the election of the present
respondent no.1 to the Office of Member of Maharashtra
Legislative Assembly from 6 - Dhule Rural Legislative
Assembly Constituency in the State of Maharashtra
declared on 19/10/2014 is void and further to declare
that the petitioner, who was also one of the candidate,
be declared as duly elected to the said Office.
3. Respondent nos.2 to 9 were also nominated as
candidates to the said election and, therefore, they are
joined as parties. None of them however has filed any
written statement.
[4] EP / 14 / 2014 - JUDGMENT
. In-fact, respondent no.1 - Shri Kunal (Baba) S/o
Rohidas Patil had raised a preliminary objection to the
maintainability of the present election petition and
later-on on 6/8/2015, Mr. P.M. Shah, learned senior
counsel i/b. Mr. Shrikant Patil, Advocate for respondent
no.1 made a statement at the bar that all the factual
aspects as pleaded in the petition and the annexures
thereto are admitted by respondent no.1 and, therefore,
he agreed that instead of recording any evidence, the
election petition itself can be heard finally. Under
the circumstances, both the sides were heard on merit of
the petition.
4. In essence, it was pleaded by the petitioner
that the respondent no.1 in his affidavit, which was
filed alongwith the nomination form, has suppressed his
assets and liabilities and has also not disclosed that
the contract subsists between him and the appropriate
Government i.e. the Government of Maharashtra which was
entered in due course of his business. Therefore, in
view of the provisions of section 9-A of the
Representation of the People Act, 1951, he was
disqualified from contesting the election.
[5] EP / 14 / 2014 - JUDGMENT
5. There is no dispute between the parties that if
the assets and liabilities which are substantive in
nature are not included in the affidavit annexed to the
nomination form, then the nomination is required to be
rejected and, therefore, election can be declared as
void as per the provisions of section 100 of the
Representation of the People Act, 1951.
6.
The philosophy and history requiring the filing
of the affidavit with the nomination form need not be
repeated here. Suffice to say that the Supreme Court of
India in the landmark decision in the case of "Union of
India Vs. Association for Democratic Reforms and
another" 2002 (5) SCC 294 has directed the Election
Commission of India to issue necessary orders to call
for information on affidavit from each candidates, as
detailed therein.
. Further, in the case of "Peoples Union for
Civil Liberties (PUCL) and anr. Vs. Union of India and
anr." (2003) 4 SCC 399, inter-alia it is declared that
the contrary provisions made thereafter being section
[6] EP / 14 / 2014 - JUDGMENT
32-B of the Representation of the People (3rd amendment)
Act, 2002, as constitutionally invalid.
. Further, in the case of "Resurgence India Vs.
Election Commission of India" 2014 AIR(SC) 344, it was
directed to the Election Commission of India to make it
compulsory for the Returning Officers to ensure that the
affidavits filed by the contestants are complete in all
respects and to reject the affidavits having blank
particulars.
7. In pursuance of the directions from the Supreme
Court, Rule 4-A was added to the Conduct of Elections
Rules, 1961 by the Election Commission of India further
providing for form of affidavit to be filled in as per
Form No.26.
8. In nutshell the submission of the petitioner
are that in the said form filled in by the present
respondent no.1, he had not given the following
information :-
i) Ownership of seven agricultural properties as
detailed in the pleadings as well as explained by
the certified copy of record of rights of village
[7] EP / 14 / 2014 - JUDGMENT
Sutterepada, Taluka and District Dhule as a
director of the company.
ii) Directorship of Tvish Infrastructure Pvt. Ltd.
and Tara Spaces Pvt. Ltd.
iii) Liability of incurring loan from State Bank of
India outstanding against the agricultural
properties at serial number 1
iv)
Trusteeship of Public Educational Trusts ; and
v) Obtaining a Miniport terminal at Kauthani on
lease from Maharashtra Maritime Board for
Samrudha Resources Ltd. of which the respondent
no.1 is a Director.
. According to the petitioner, the lease of the
Miniport from the Maharashtra Maritime Board, is in-fact
a subsisting contract entered into by the respondent
no.1 in the course of his business with the appropriate
Government incurring disqualification as provided by
section 9-A of the Representation of the People Act,
1951.
9. All the factual aspects are admitted by the
respondent no.1. It was further admitted that respondent
[8] EP / 14 / 2014 - JUDGMENT
no.1 was required to disclose assets and liabilities
concerning himself, his spouse and the dependents as
provided by the relevant provisions.
. However, as regards the lease, it was submitted
that the Miniport is obtained on lease by the company of
which the respondent no.1 is merely a director and even
the Maharashtra Maritime Board would not be an
appropriate Government within the provisions of section
9-A of the Representation of the People Act, 1951.
During arguments Mr. Hon concedes the submission.
10. Mr. V.D. Hon, learned Senior Counsel i/b.
Mr. P.D. Bachate strenuously submitted before me that
taking into consideration the philosophy behind the
introduction of the relevant provisions in the rules
that the voters should be fully aware about the
financial and other antecedents of the candidate, the
provisions of the rules providing for declaration of the
assets and liabilities of a candidate, his spouse or
dependents shall also mean the assets and liabilities of
the company of which the candidate is a director.
On the same line he is required to declare as to whether
[9] EP / 14 / 2014 - JUDGMENT
he is a trustee of any Public Trust.
11. In view of the ratio of "Shrikant Vs. Vasantrao
and others" (2006) 2 SCC 682, Mr. Hon concedes that
since Samrudha Resources Ltd. has obtained lease from
Maritime Board, which cannot be called an appropriate
Government, the respondent no.1 was not disqualified
from contesting the election.
12.
The affidavit filed by the respondent no.1 with
the nomination form would show that while disclosing the
assets, he has disclosed that he was a shareholder and a
director of one Tek Sutte Industries Private Ltd. and
his shares therein are detailed. The assets of the said
company are not held individually by him, his spouse or
his dependents. The same is the case regarding the
liabilities incurred on those properties.
. As regards the fact that he is the director of
Tvish Infrastructure Pvt. Ltd. and Tara Spaces, it was
submitted that being a director is neither an asset nor
the properties of the said company would be the assets
of the respondent no.1, his spouse or dependents and,
therefore, no information was required to be supplied.
[10] EP / 14 / 2014 - JUDGMENT
13. Rule 4-A of the Conduct of Election Rules, 1961
provides as under:-
"4-A. Form of affidavit to be filed at the
time of delivering nomination paper. -- The
candidate or his proposer, as the case may be,
shall, at the time of delivering to the
returning officer the nomination paper under
sub-section (1) of section 33 of the Act, also
deliver to him an affidavit sworn by the
candidate before a Magistrate of the first
class or a Notary in Form 26."
14.
Form No.26 inter-alia provides that details of
the assets and liabilities of candidate himself, his
spouse or the dependents are required to be given.
15. Mr. Hon relies on the ratio in the case of
"Kisan Shankar Kathore Vs. Arun Dattatray Sawant and
others" 2014 AIR(SCW) 2889. In the said case, the
candidate was the partner in a firm and the assets of
the said firm were not disclosed in the affidavit filed
with the nomination form. His election therefore was
declared as void.
16. Upon hearing both sides, in my view, the
respondent no.1 has not suppressed any material
information regarding his assets or liabilities. The
[11] EP / 14 / 2014 - JUDGMENT
assets or liabilities of a private limited company of
which the respondent no.1 was the director is not
required to be furnished as per the rules and the forms
appended to the said rules.
17. Similarly, the fact that the respondent no.1
was the director of two companies or that he was a
trustee of a certain Public Trust, as detailed supra,
would not be his asset. In that view of the matter, the
ratio laid down in the case of "Kisan Shankar Kathore"
(cited supra) would not be applicable to the facts in
the present case.
. It is to be noted that the basic requirement is
of furnishing information about the candidate's assets
and liabilities as well as the assets and liabilities of
his nuclear family. The same cannot be stretched to the
requirement of furnishing all the assets and liabilities
of a company or of a Public Trust of which the candidate
or his spouse or dependents would be the share
holder/director or a trustee.
18. In "Kisan Shankar Kathore" (cited supra) the
candidate has suppressed his share in a partnership
[12] EP / 14 / 2014 - JUDGMENT
firm. It is needless to repeat here that partnership
firm is merely a compendium of the persons having no
entity in law. In that view of the matter, share in the
assets and liabilities of a partnership firm of which
either a candidate or his spouse or dependent is a
partner would be a material information. The same
cannot be stretched to the declaration requiring the
candidate to declare even the assets and liabilities of
the company with which the relation is only as a
director or a shareholder.
19. Considering all these facts on record, it
cannot be declared that the nomination of the present
respondent no.1 has been improperly accepted. In the
circumstances, the following order :-
20. The Election Petition is hereby dismissed
without any order as to costs.
[M.T. JOSHI]
JUDGE
arp/
