Bombay High Court
Gajanan S/O Tukaram Butake vs Kirtikumar Mitesh Bhangdiya, ... on 2 September, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
ELECTION PETITION NO. 8 OF 2014
PETITIONER: Gajanan S/o Tukaram Butake, Aged
about 38 years, Occu: Agriculturist,
R/o Chimur, Tah. Chimur, Distt.
Chandrapur.
-VERSUS-
RESPONDENTS:
ig 1. Kirtikumar Mitesh Bhangdiya, Bunti
Bhangdiya (as shown on EVM & in
declaration of final results), Aged
about 32 years, Occu: Business,
Government Contractor, R/o Tilak
Ward, Shivaji Chowk, Main Bazar
Road, Chimur, Tah. & Distt. Chimur.
2. Returning Officer, 074, Chimur
Assembly Constituency & Sub
Divisional Officer, Chimur, Tah. &
Distt. Chimur.
Deleted as per the 3. Election Commission of India
Courts order dated Nirwachan Sadan, Ashoka Road, New
7-5-15. Delhi-100 001 through its Secretary.
Shri M. R. Joharapurkar, Advocate for the petitioner.
Shri Anand Parchure and Shri S. A. Chaudhary, Advocates for the
respondent no.1.
Mrs. Kalyani Deshpande, Asstt. Government Pleader for respondent
No.2.
CORAM: A.S. CHANDURKAR, J.
DATED: 2 nd SEPTEMBER, 2016.
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ORAL JUDGMENT :
1. This election petition has been filed by the petitioner
under Section 80 of the Representation of the People Act, 1951
(for short, the said Act) challenging the election of the respondent
No.1 as a Member of the Legislative Assembly from 074 Chimur
constituency.
2. The election of the respondent no.1 has been
challenged principally on the ground that the respondent no.1 is a
Government Contractor undertaking civil contracts and on the
date of filing his nomination paper these contracts with the
Government were subsisting. According to the petitioner, the
respondent no.1, therefore, stands disqualified by virtue of
provisions of Section 9-A of the said Act. The other ground of
challenge is that the respondent no.1 while submitting his
nomination form had filled in the same as per his name appearing
in the electoral roll. However, when the results of the election
were declared, the name of the returned candidate was shown
differently. This according to the petitioner resulted in breach of
provisions of Section 33(4) of the said Act. It is on these grounds
of the election of the respondent no.1 was challenged.
In the written statement (Exhibit-11) filed on behalf of
the respondent No.1 it has been pleaded that the contracts in
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question were with the Vidarbha irrigation Development
Corporation (VIDC) which was not appropriate Government and
hence, the respondent no.1 was not disqualified under provisions
of Section 9-A of the said Act. It was also pleaded that the
provisions of Section 33(4) of the said Act were not violated as the
name of the respondent no.1 that was shown in the return of
election was the name by which he was commonly known. It was,
therefore, prayed that the election of the respondent no.1 did not
deserve to be set aside.
3. In the light of the pleadings of the parties, the
following issues were framed:
(1) Does the petitioner prove that on the date of filing the
nomination, the respondent no.1 was a Government
Contractor and whether there was any subsisting
contract on the said date thereby incurring
disqualification as contemplated under Section 9A of
the Representation of the People Act, 1951?
(2) Whether by submitting resignation on 2-8-2014 to the
Registrar of Companies, does the Respondent no.1
prove that he had no continuing interest in the said
Company which had continued the work contracts
with Vidarbha Irrigation Development Corporation?
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(3) Whether the petitioner proves that the respondent no.1
was holding any share in Yuwa Shakti Textiles as
alleged?
(4) Whether the petitioner proves that election of
respondent no.1 is vitiated on account of change of his
name in the Election Voting Machine and there is any
violation of Section 33(4) of the Representation of the
People Act, 1951?
Thereafter on the application moved by the respondent no.1 issue
No.5 came to be framed. The same reads thus:
"Does the petitioner prove that Vidarbha
Irrigation Development Corporation is "State
Government" for the purpose of Section 9-A of
the Representation of the People Act, 1951?"
The learned Counsel for the parties submitted that neither the
petitioner nor the respondent no.1 desired to lead evidence on
issue no.5 which was treated to be a preliminary issue.
4. By order dated 11-8-2016, the issue No.5 was taken up
as a preliminary issue and the same was answered against the
petitioner by passing the following order:
1. Issue no.5 has been taken up as a
preliminary issue for consideration. The said
issue reads as under :-
"Does the petitioner prove
that Vidarbha Irrigation
Development Corporation
is "State Government" for
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the purpose of Section 9-A
of the Representation of
the People Act, 1951?"
The learned Counsel for the parties on 14-7-
2016 submitted that the parties did not intend
to lead any evidence on the preliminary issue.
Accordingly, they have been heard on the said
preliminary issue.
2. Shri M. R. Joharapurkar, the
learned Counsel for the petitioner submitted
ig that while considering provisions of Section 9A
read with Section 7(a) of the Representation of
the People Act, 1951 (for short, the said Act), it
would also be necessary to consider the
provisions of the Vidarbha Irrigation
Development Corporation Act, 1997 (for short,
the Act of 1997). Relying upon the averments
made in paragraphs 17 to 20 of the election
petition, it was submitted that the State of
Maharashtra had all pervasive control over the
affairs of the Vidarbha Irrigation Development
Corporation (for short, VIDC). The Minister for
Irrigation in the State of Maharashtra was the
ex-officio Chairman of the VIDC and the
employees of the State Government were
working on deputation with the VIDC. It was,
therefore, urged that considering the object of
the provisions of Section 9-A of the said Act and
in view of the overall control of the State
Government, VIDC would fall within compass of
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the provisions of Section 9-A of the said Act.
3. Shri Anand Parchure, the learned
Counsel along with Shri S.A. Chaudhary, the
learned Counsel for the respondent no.1
submitted that in the present election petition,
the election of the respondent no.1 has been
challenged on the ground that the respondent
no.1 was engaged in various works by entering
into the contracts with VIDC. It was submitted
that in the election petition, the case set up is
ig that in view of the said subsisting contracts
between the respondent no.1 through his firm
on one side and the VIDC on the other side
results in conflict of duty and interest and is in
violation of the provisions of Section 9-A of the
said Act. According to the learned Counsel, for
the purposes of attracting any disqualification
for having a subsisting contract under Section
9-A of the said Act, such contract has to be with
the appropriate Government. Section 7(a) of
the said Act defines the term "appropriate
Government" to mean the State Government in
the present case. It was urged that the VIDC
was a distinct Corporation that was established
under the Act of 1997 and the same could not
be treated to be the State Government under
Section 9-A of the said Act. In support of this
submission, the learned Counsel placed reliance
upon the judgment of the Hon'ble Supreme
Court in Shrikant Vs. Vasantrao and others
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2006(2) Mh.l.J. 1. It was submitted that the
concept of State under Article 12 of the
Constitution of India was distinct from the term
"State Government" under the said Act. Hence,
it was urged that there was no question of
breach of provisions of Section 9-A of the said
Act being committed on account of subsisting
contracts with VIDC.
4. The provisions of Section 9-A of the
said Act have been considered by the Hon'ble
ig Supreme Court in its decision in Shrikant
(supra). The facts therein indicate that the
returned candidate was a Government
contractor who had executed works of the
Maharashtra Jeevan Pradhikaran. On that
basis, his election came to be challenged. While
considering a similar contention that is sought
to be raised by the petitioner herein, the
Hon'ble Supreme Court in para 19 of its
judgment held that while the term "State" may
include the State Government as well as
statutory or other Authorities for the purposes
of Part III of the Constitution of India, the term
"State Government" in its ordinary sense would
not encompass in its hold either a local or
statutory authority. On that basis it was held
that the Godawari Marathwada Irrigation
Development Corporation which was an
authority constituted under the Maharashtra
Godawari Marathwada Irrigation Development
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Corporation Act, 1998, was not "State
Government" and, therefore, any contracts with
it would not amount to contracts being entered
into by the candidate with the appropriate
Government.
5. The aforesaid decision of the
Hon'ble Supreme Court gives a complete
answer to the submission sought to be made on
behalf of the petitioner. Identical provisions as
found in the Act of 1997 can also be found in
ig the Maharashtra Godawari Marathwada
Irrigation Development Corporation Act, 1998.
On that count, therefore, there is no doubt
whatsoever in concluding that the VIDC is not
the "appropriate Government" for the purposes
of attracting disqualification under Section 9-A
of the said Act.
6. In view of aforesaid discussion, the
preliminary issue is answered against the
petitioner by holding that Vidarbha Irrigation
Development Corporation is not "State
Government" for the purposes of Section 9-A of
the said Act.
5. In view of the answer to the said preliminary issue,
Issue Nos.1 to 3 would not fall for adjudication as their
adjudication was dependant on the adjudication of Issue No.5 in
favour of the election petitioner.
6. On 19-8-2016, the learned Counsel for the petitioner
submitted that the petitioner did not intend to lead any evidence
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on issue No.4. Accordingly, the learned Counsel for the parties
were heard on issue No.4.
7. Issue No.4 reads thus :
"Whether the petitioner proves that election of
respondent No.1 is vitiated on account of change
of his name in the Election Voting Machine and
there is any violation of Section 33(4) of the
Representation of the People Act, 1951?
Shri M.R. Joharapurkar, the learned Counsel for the
petitioner submitted that the name of the respondent No.1 - the
returned candidate was shown in the electoral roll as " Bhangadiya
Kirtikumar Mitesh". The returned candidate filled in his
nomination form in the same name on 27-8-2014. This nomination
paper was accepted. However, when the results of the election
from constituency No.74 were declared, the name of the returned
candidate was shown as "Banti Bhangdiya". The name of the
returned candidate could not have been different from the name of
the said candidate as shown in the electoral roll or as per the
nomination form filled in by the said candidate. Reference was
made to the provisions of Section 33(4) of the said Act to urge that
such change was not permissible. The learned Counsel referred to
the averments in paragraph 27 of the election petition. It was,
therefore, submitted that on said count, the election of respondent
no.1 was vitiated.
8. Shri Anand Parchure, the learned Counsel for the
respondent no.1 submitted that there was no violation of the
provisions of Section 33(4) of the said Act. He submitted that
though the respondent no.1 had submitted his nomination form as
per his name appearing in the electoral roll, as the respondent
no.1 was also known as "Banti Bhangadiya" he had made a request
to the Returning Officer while submitting his nomination form that
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his name in the ballot paper should be mentioned as "Banti
Bhangadiya". The nomination form of the respondent no.1 was
duly accepted after which the respondent no.1 was declared
elected. According to the learned Counsel, it was permissible for a
candidate to be described by the name by which such candidate
was commonly described and the same did not result in vitiating
his election. It was, therefore, submitted that the election of the
respondent no.1 could not be declared to be void on that count.
9. I have heard the learned Counsel for the parties and I
have considered their respective submissions. It is not in dispute
that the respondent no.1 submitted his nomination form (Exhibit-
34) by describing himself as "Bhangadiya Kirtikumar Bhangadiya".
Such name was appearing in the electoral roll. Alongwith the
nomination form, a request was made by the respondent no.1 on
27-9-2014 (Exhibit-41) that his name be shown as "Banti
Bhangadiya" in the ballot paper. The nomination form of the
respondent no.1 came to be duly accepted. After the results were
declared as per in the return of election, it was shown that "Banti
Bhangadiya" had secured the highest number of votes and was
declared elected.
10. As per the provisions of Section 33(4) of the said Act,
the Returning Officer has to satisfy himself that the name and
electoral roll number of the candidate and his proposer as entered
in the nomination paper are the same as per the entry in the
electoral rolls. However, the full operation of the electoral roll or
the nomination paper shall not be affected if the description with
regard to the name of a person or place is shown to be such as
commonly understood. Further the Returning Officer is permitted
to correct any such misnomer or inaccurate description and he can
also direct the same to be overlooked.
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From the aforesaid provisions, it can be seen that in
case a person or place is described in the manner as the same is
commonly understood, it shall not affect the full operation of the
electoral roll. As per the request made by the respondent no.1, his
name in the ballot paper was shown in the manner by which he
was commonly understood. Thus, if the Returning Officer is
empowered to overlook the description of a person or place if the
same is shown by the name commonly understood, it cannot be
said that by permitting the respondent no.1 to have his name
shown in the ballot paper in the manner in which it was commonly
understood, there was any violation of the provisions of Section
33(4) of the said Act. There is no dispute with regard to the
identity of the respondent no.1 nor is it the case that the voters
were misled by the use of such commonly understood name. It,
therefore, cannot be said that by the description of the returned
candidate by the name by which he was commonly understood,
the provisions of Section 33(4) of the said Act have been violated.
In any event, the election of a returned candidate can be declared
to be void under Section 100 (1)(d)(iv) of the said Act, if by virtue
of non- compliance of the provisions of the said Act, the result of
the election has been materially affected. Such is not the case
sought to be made out by the petitioner.
11. In view of the aforesaid discussion, Issue No.4 is
answered in the negative and against the petitioner. The election
of the respondent No.1 is not vitiated on account of change of his
name in the Electronic Voting Machine nor are the provisions of
Section 33(4) of the said Act violated.
Thus, from the aforesaid adjudication and as the
preliminary issue as well as the issue No.4 have been answered
against the petitioner, it will have to be held that the petitioner has
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failed in proving that the election of the respondent no.1 is liable
to be set aside in the present election petition that has been filed
under Section 80 of the said Act. Accordingly, the election petition
stands dismissed in terms of provisions of Section 98(a) of the said
Act. In view of provisions of Section 119 proviso to the said Act,
the respondent no.1 would be entitled to costs from the petitioner.
12. In view of aforesaid, the following order is passed:
Order
Election Petition No.8/2014 stands dismissed. The
respondent no.1 would be entitled to costs from the petitioner.
This order be communicated to the Election Commission and the
Chairman of the State Legislature as per provisions of Section 103
of the said Act.
JUDGE
//MULEY//
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