Bombay High Court
Dhamma Ramesh Ghobale vs The Returning Officer, Municipal ... on 2 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5287 OF 2014
...
Dhamma s/o Ramesh Ghobale,
age 31 years, Occ. Business,
R/o Sangharsha Nagar,
Mahatma Phule Nagar,
Gangakhed, Tq. Gangakhed,
Dist Parbhani. Petitioner.
VERSUS
1.
The Returning Officer,
Municipal Council, Gangakhed,
Tq. Gangakhed, Dist. Parbhani.
2. Rajkumar s/o Trimbakrao Sawant,
age 37 years, Occ. Business,
R/o Gangakhed, Tq. Gangakhed,
Dist Parbhani.
3. Bhimrao s/o Tulshiram Salve,
age major, Occ. Nil, r/o Rajan Niwas,
Krishna Nagar, Gangakhed,
Tq. Gangakhed, Dist. Parbhani.
4. Nilawantibai w/o Rukhmaji Ghobale,
age major, Occ. Household,
R/o Mahatma Phule Nagar,
Gangakhed, Tq. Gangakhed,
Dist. Parbhani.
5. Sheshrao s/o Sitaram Parvel,
age major, Occ. Business,
R/o Mahatma Phule Nagar,
Gangakhed, Tq. Gangakhed,
Dist. Parbhani.
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6. Sumanbai w/o Sambhaji Kamble,
age major, Occ. Household,
R/o Mahatma Phule Nagar,
Gangakhed, Tq. Gangakhed,
Dist. Parbhani.
7. Kalawatibai w/o Govindrao Ghobale,
age 55 years, Occ.nil, R/o Vijaydurg,
Gangakhed, Tq. Gangakhed,
Dist. Parbhani.
8. Gajanan s/o Trimbakrao Sawant,
age 34 years, Occ. Nil,
R/o Gangakhed, Tq. Gangakhed,
District Parbhani. Respondents.
...
Advocate for Petitioner : Mr Sachin S Deshmukh
Advocate for Respondent No.1 : Mr S.V. Mundhe
Advocate for Respondent 2,8 : Mr P D Bachate
Respondent Nos. 3 to 8 served-absent.
...
CORAM : V.K. JADHAV, J.
...
Date of reserving the judgment : February 16, 2016
Date of Pronouncing the judgment : March 02, 2016.
...
JUDGMENT :-
1. The petitioner was one of the contesting candidate
in the election of Municipal Council, Gangakhed, from
Ward No.6-A. Respondents No. 2 to 8 had also
contested the election from the same ward. In the
nomination form of respondent no.2 his name is
mentioned in voting list at Serial No. 2868. According to
the petitioner, respondent no.2 is pretending himself to
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be 'Gajanan s/o Trimbakrao Sawant.' The petitioner
further states that, respondent no.2 had placed identity
proof of 'Rajkumar s/o Trimbakrao Sawant' thereby, he
has made impersonation in the name of 'Gajanan s/o
Trimbakrao Sawant.' The petitioner further contends
that, respondent no.2 does not have any nick name. It
is the case of the petitioner that, respondent no.2 has
knowingly furnished false information in his nomination
form, and thereby, he has committed corrupt practices
for his election. Respondent no.2 was declared as
elected member from ward No.6-A of Municipal Council,
Gangakhed, and, the petitioner, therefore, by filing
Election Petition bearing No.6 of 2011 before the learned
District Judge, at Gangakhed, sought declaration that
the election of respondent no.2 is null and void and to
declare the petitioner as duly elected member from ward
No.6-A of Municipal Council, Gangakhed. In the
alternative, the petitioner prayed for re-polling at ward
no.6-A of Municipal Council, Gangakhed.
2. Respondents No.2 and 8 (same person) filed
written statement at Exh.18 and, strongly resisted the
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election petition. The other respondents did not appear
before the learned District Judge-1, Gangakhed, and,
the petition thus, proceeded ex-parte against them. In
order to substantiate his claim, the petitioner examined
himself by filing his affidavit of evidence at Exh.21 and
he closed his evidence by filing purshis at Exh.52. The
petitioner had placed on record several documents
which are almost admitted by respondent no.2.
Respondent no.2 has also examined himself. The
learned District Judge-1, Gangakhed by judgment and
order dated 24.04.2014 dismissed the petition with
costs. Hence, this writ petition.
3. The learned counsel for the petitioner submits
that, name of respondent no.2 appears at Serial
No.3057 in the electoral roll of the voters list in the
name as 'Rajkumar Trimbakrao Sawant'. Learned
counsel submits that, name of respondent no.2 as
'Rajkumar Trimbakrao Sawant' has been entered in all
the documents maintained under the statute i.e. Income
Tax Act, Arms Act, Motor Vehicles Act, Secondary School
Code, Pass Port Act, Registration Act, Insurance Act.
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Learned counsel submits that, undoubtedly, respondent
no.2 himself is the source for all these documents and,
on the strength of the information provided by him, his
name has been recorded as 'Rajkumar' everywhere.
Learned counsel further submits that, however, entry of
the name appears at Sr.No. 2868 in the name of
'Gajanan Trimbakrao Sawant'. Learned counsel submits
that, admittedly, when respondent no.2 appears in the
name of 'Rajkumar' everywhere, however, for the first
time, in the election of the Municipal Council,
Gangakhed, respondent no.2 posing himself as
'Gajanan', presented his nomination and contested the
election. Initially, the petitioner had raised objection to
the nomination of respondent no.2, however, same was
turned down. The learned counsel further submits
that, respondent no.2 presented his written statement
in the election petition, and, equally accepted the
service on behalf of respondent no.8. Respondent no.2,
while admitting the documents produced on record by
the petitioner, respondent no.2 admitted that the name
at serial no.2868 as 'Gajanan Sawant' in Ward No.2 and
the name at serial no.3057 as 'Rajkumar' in the same
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ward is of his own which was recorded in different
names. Learned counsel submits that, respondent no.2
unequivocally admitted the documents wherein his
name is recorded as 'Rajkumar'. Learned counsel
submits that, in light of the admission in cross-
examination, coupled with admission in written
statement, the petitioner had established his case in
respect of fraud, false claim and corrupt practice as
contemplated under Section 22(4) of The Maharashtra
Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 (Hereinafter referred to as the 'Act
of 1965'). Learned counsel further submits that,
respondent no.2 has made false declaration in respect of
his claim. Learned counsel submits that, in view of the
provisions of Section 18 of The Representation of the
People Act, 1950 ('Act of 1950') no person shall be
entitled to be registered in the electoral roll for any
constituency more than once and no person shall be
entitled to be registered in the electoral roll in any
constituency, more than once. Learned counsel
further submits that, respondent no.2 has admitted
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that his name is appearing twice in the electoral roll
(voters list) in different names which is in contravention
with section 18 of the Act of 1950. Learned counsel
submits that, therefore, nomination of respondent no.2
for election of Municipal Council, Gangakhed, is void.
Learned counsel submits that, breach under section 17
and 18 of the Act of 1950 has been duly established in
the case. Learned counsel submits that, overlooking the
entire evidence, the learned District Judge-1,
Gangakhed, by its impugned order dated 24.4.2014
dismissed the election petition.
4. Learned counsel appearing for respondents no.2
and 8 submits that, for the election of the Municipality,
Gangakhed, for the year 2011, a voter list was prepared
and made final. In the said voters list, name of the
petitioner is recorded at serial no.2868 as 'Gajanan
Trimbakrao Sawant' and also at serial No.3057 as
'Sawant Rajkumar Trimbakrao' from ward No.2.
Learned counsel submits that, the petitioner had filed
election petition on false grounds. Learned counsel
submits that, respondent no.2 is the son of Trimbakrao
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Sawant, who happened to be a Member of Legislative
Assembly of Maharashtra State from Gangakhed
Constituency and also the member of Parliament of
India for one time. Learned counsel submits that, nick
name of 'Gajanan Trimbakrao Sawant' is 'Rajkumar' and
is popularly known by that name in the Society.
Learned counsel submits that, respondent no.2 had
filed his nomination in the name of 'Sawant Gajanan
Trimbakrao' from National Congress Party, and said
Congress Party had issued 'A', 'B' form to respondent
no.2 in the name of 'Sawant Gajanan Trimbakrao' and
accordingly, respondent no.2 had submitted said 'A' and
'B' forms with nomination. Learned counsel further
submits that, respondent no.2 had also filed affidavit
alongwith his nomination form and clarified that,
Gajanan and Rajkumar are the same persons. Learned
counsel submits that, by taking disadvantage regarding
name of respondent no.2 recorded at two times in the
voter list in the different name's and at serial No.2868
his photo is not affixed, the petitioner filed a false
objection before the Returning Officer. The Returning
Officer has rejected the objection on the day of
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nomination itself. Respondent no.2, thereafter, declared
elected in the election of Municipality, Gangakhed for
the year 2011 from ward No.6-A. Learned counsel
further submits that, thereafter, the petitioner has also
filed an appeal against the order of Returning Officer
dated 23.11.2011 and, the same was dismissed on
30.11.2011 by the District Judge-1, Gangakhed, bearing
Election Appeal No.1 of 2011. Learned counsel submits
that in terms of section 14 of the Act of 1965, no person
shall be entitled to vote at a general election in more than
one ward, notwithstanding that his name may appear in
the list of voters for more than one ward, and if a person
votes in more than one ward his votes in all wards shall
be void. No person shall be entitled to vote at any
election in the same ward more than once,
notwithstanding that his name may appear in the list of
voters for that ward more than once, and if he does so
vote, all his votes in that ward shall be void. Learned
counsel submits that, in terms of provisions of the Act,
1965, the name of a person may appear more than once
in electoral roll, but, that person is not entitled to cast
his vote more than once, therefore, merely on this
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ground, the election of respondent no.2 is not liable to
be declared void. Learned counsel submits that, there
is no substance in the writ petition, and the writ
petition is liable to be dismissed with costs.
5. Though respondents no. 3 to 7 duly served, none
appears for them.
6.
I have carefully examined the Record and
Proceedings of the Election Petition. It appears that,
respondent no.2 has submitted his nomination on
21.11.2011 in the name of 'Gajanan Trimbakrao Sawant'
by referring his serial number in voters list as 2868. It
also appears from the record that, alongwith nomination
form, respondent no.2 has submitted various
documents and affidavits as provided under the Act. It
also appears that, alongwith nomination form
respondent no.2 has also filed a separate affidavit
mentioning therein that his nick name is 'Rajkumar'.
He is popularly known in the village by that name. I do
not find that respondent no.2 has made a false
declaration at the time of his nomination. There are
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certain documents placed on record such as caste
certificate, identity card issued by the Election
Commission, etc. It appears that, name of respondent
no.2 is mentioned as 'Gajanan Trimbakrao Sawant'
since 1994. Some of the documents as referred by the
petitioner do reflect that those documents are issued in
the name of 'Rajkumar Trimbakrao Sawant' which
according to respondent no.2 is his nick name, is not
sufficient to hold that respondent no.2 indulged in
impersonation. The petitioner has also not come with a
case that, 'Gajanan Trimbakrao Sawant' and 'Rajkumar
Trimbakrao Sawant' are the two different persons and,
respondent no.2 by posing himself as 'Gajanan'
contested the election. I do not find that respondent
no.2 has committed any fraud.
7. It is true that, the voters list to be used for
elections of the Municipal Council is the voters list as in
vogue for the Assembly, as revised from time to time,
under the Scheme of the Act of 1950 and Rules of 1960.
Any scheme and mechanism for preparation of a
separate voters list for election is not provided. Even the
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machinery acting under Representation of People Act,
1950 and Registration of Elector's Rules, 1960 have not
been fastened with any obligation under Representation
of People Act, 1950 and Registration of Electors Rules,
1960, independently or when read with MMC to revise
the list and do additions or amendments in the list of
voters specially for the purpose of Municipal Council
elections. In terms of the provisions of Maharashtra
Municipalities Act, the name of a person if appears more
than once in electoral roll, the person is not entitled to
cast his vote more than once, and if a person votes in
more than one ward, all his votes in that wards shall be
void. Even, a person is not entitled to vote at any
election in the same ward more than once,
notwithstanding his name may appear in the list of
voters for that ward more than once and if he does so,
all his votes in the ward shall be void. The learned
District Judge-1, Gangakhed, has, therefore, rightly
taken a view that, merely on this ground alone, election
of Respondent No.2 is not liable to be declared void.
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8. In view of the above discussion, the impugned
Judgment and Order calls for no interference. There is
no substance in the writ petition, and the writ petition
is, thus, liable to be dismissed. Hence, following order.
O R D E R
I. Writ Petition is hereby dismissed. Rule
discharged.
II. In the circumstances, there shall be no order
as to costs.
( V.K. JADHAV )
JUDGE.
...
AAA/-
