Shaikh Chandpasha Shaikh Jani vs Election Commission Of India And ...
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                                                Election Petition No. 4/2014
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                            ELECTION PETITION NO.4 OF 2014

       Shaikh Chandpasha Shaikh Jani,
       Age 32 years, Occ. Business,
       R/o Indira Nagar, Old Jalna,
       Tal. & District Jalna.                        ....Petitioner.

               Versus

1.     Election Commission of India,
       Nirvachan Sadan, Ashoka Road,
       New Delhi - 110001,
       Through its Chief Election Commissioner.

2.     The District Collector, Jalna,
       Tal. & District Jalna.

3.     Returning Officer,
       For the Elections of 101 - Jalna
       Legislative Assembly Constituency,
       Jalna,Tal. & District Jalna.

4.     Arjun S/o Panditrao Khotkar,
       Age 52 years, Occ. Agri. & Business,
       R/o Darshana, Bhagya Nagar,
       Old Jalna, Tal. & Dist. Jalna.

5.     Abdul Rashid Ajij,
       Age 55 years, Occ. Business,
       R/o Raheman Ganj, Jalna,
       Tal. & District Jalna.

6.     Arvind S/o Bajirao Chavan,
       Age 57 years, Occ. Agri. & Business,
       R/o Manegaon Kha.,
       Tal. & District Jalna.

7.     Kailas S/o Kishanrao Gorantyal,
       Age 49 years, Occ. Business,
       R/o 77, Pritisudha Nagar,
       Mantha Road, Jalna,
       Tal. & District Jalna.




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                                                  Election Petition No. 4/2014
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8.     Khushalsinh S/o Nandkishorsinh Thakur,
       Age 54 years, Occ. Business,
       R/o 29, Chatrapati Colonu, Old Jalna,
       Tal. & District Jalna.

9.     Ravi S/o Haribhau Raut,
       Age 35 years, Occ. Business,
       R/o 48-1, Opp. Pandurang Temple,
       At Post. Pir Pimpalgaon,
       Tal. & District Jalna.

10.    Baliram S/o Ankushrao Kolte,
       Age 30 years, Occ. Agri.,
       R/o Pirpimpalgaon,
       Tal. & District Jalna.

11.    Khaled Bin Naser Chaus,
       Age 45 years, Occ. Business,
       R/o Itwara Galli, Kacheri Road,
       Old Jalna, Tal. & District Jalna.

12.    Dhansing S/o Pratapsing Suryawanshi,
       Age 33 years, Occ. Social Work,
       R/o Indewadi, Near Water Tank,
       Ambad Road, Indewadi,
       Tal. & District Jalna.

13.    Faroz Khan Samad Khan,
       Age 38 years, Occ. Business,
       R/o Baidpura, Opp. Mashjid,
       Sadar Bajar, Jalna,
       Tal. & District Jalna.

14.    Sudam S/o Shankarrao Bansode,
       Age 42 years, Occ. Agri.,
       Building of Beg Sir, Above Post Office,
       Badnapur, Tal. & Dist. Jalna.

15.    Kailas S/o Kisanrao Ghorpade,
       Age 38 years, Occ. Agri.,
       R/o Gondegaon, Tal. & District Jalna.

16.    Farukh Ilahi Khan,
       Age 43 years, Occ. Business,




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                                                Election Petition No. 4/2014
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       R/o Old Jalna, Tal. & District Jalna.

17.    Dadarao S/o Vitthalrao Lahane,
       Age 40 years, Occ. Agri.,
       R/o. Vanjar Umrad, Post Gondegaon,
       Tal. & District Jalna.

18.    Sandeep S/o Uttamrao Kharat,
       Age 35 years, Occ. Social Work,
       R/o Civil Hospital Quarter,
       Old Jalna, Tal. & District Jalna.

19.    Dnyaneshwar S/o Dagduji Nade,
       Age 52 years, Occ. Social Work,
       R/o Priyadarshani Colony,
       Sambhaji Nagar, Jalna,
       Tal. & District Jalna.

20.    Adv. Dnyaneshwar S/o Manikrao Wagh,
       Age 40 years, Occ. Advocacy,
       R/o Plot No.20, Datta Nagar,
       Near New Mondha,
       Tal. & District Jalna.         ...Respondents.

Mr. S.S. Thombre, Advocate for petitioner.

Mr. Mr. A.B. Kale, V.D. Sapkal, Mr. P.A. Bhosle, Advocate for
respondent No. 4.
Mr. P.M. Shah, Senior Advocate i/b. Mr. Aditya Sikchi, Advocate for
respondent No. 7.

Mr. M.V. Thorat, Advocate for respondent No. 14.

Mr. V.S. Deshmukh, Advocate for respondent No. 15.

Matter proceeded exparte against respondent Nos. 5, 6, 8 to 13 and
15 to 20 vide Court Order dated 22/1/2016.

Respondent Nos. 1 and 3 are deleted vide Court order dated
1/7/2016.
                   CORAM : T.V. NALAWADE, J.
                   RESERVED ON : 13/10/2017
                   PRONOUNCED ON : 24/11/2017




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                                                       Election Petition No. 4/2014
                                        4


JUDGMENT :

1) The petition is filed for relief of declaration that the

election of respondent No. 4 - Arjun Panditrao Khotkar, Returned

Candidate (hereinafter referred to as 'RC' for short) from

Maharashtra Legislative Assembly 101-Jalna Constituency of which

result was declared on 19.10.2014 is void. The proceeding is filed on

the ground that the petitioner - Shaikh Chandpasha Shaikh Jani had

filed nomination form for this election, but his nomination form was

improperly rejected.

2) The programme of the election was as follows :-

20th September 2014 to 27th The period prescribed for filing of September 2014 (Saturday) the nominations 27th September, 2014 Till 3 p.m. the time to deliver the nomination paper 29th September 2014 (Monday) The date fixed for scrutiny of nominations 15th October 2014 (Wednesday) The date of polling 19th October 2014 (Sunday) The date of counting of votes and declaration of the results.

3) It is the case of petitioner that in pursuant to the

aforesaid programme, he submitted the nomination form on

26.9.2014. It is his contention that he has filed nomination form

along with affidavit in Form No. 26 as per Rule 4-A of the Conduct of

Election Rules, 1961. It is his contention that he had completed the

Election Petition No. 4/2014

formalities like making payment of deposit etc. and some

discrepancies were pointed out by the Returning Officer (hereinafter

referred as to 'RO' for short) in respect of Form No. 26. It is his

contention that as he was supposed to file fresh Form No. 26 with

affidavit up to 27.9.2014, he presented such form on 27.9.2014

within prescribed time, before 3.00 p.m. before RO. It is contended

that without considering circumstance that he had taken the steps to

remove the discrepancies and he had filed another Form No. 26 for

compliance of the provisions of the law, the RO rejected his

nomination form during scrutiny which took place on 29.9.2014. He

has made RC and all other candidates who had contested the

election as party respondents to the present proceeding. It is his

contention that no candidate had taken objection to his nomination

form, but the RO has illegally rejected his nomination form and so,

the election is liable to be set aside. Along with the present

proceeding, necessary affidavits were filed and procedure required

to be followed for filing such proceeding is followed by the petitioner.

Copies of nomination form and Form No. 26 filed by him firstly on

26.9.2017 and then on 27.9.2017 are produced along with the order

of rejection made by RO.

4) Respondent No. 4 has filed written statement and has

contested the matter. It is the case of RC that the nomination form

Election Petition No. 4/2014

of the petitioner was not complete and even after pointing out the

deficiencies, the deficiencies were not removed by the petitioner and

so, the RO has rightly rejected the nomination of the petitioner.

5) Respondent No. 7 - Kailash Kishanrao Gorantyal, who

had secured second highest votes has filed written statement and he

has supported the petitioner.

6) This Court had asked both the sides to propose the

issues and both the sides were heard on the point of framing issues.

The issues are framed on the basis of rival pleadings and the

submissions made before this Court at Exh. 28 on 18.7.2016 and

they are as under :-

Sr. Issues Findings No.

1 Whether the Election Petition suffers on - Negative the count of non compliance of Sections 81, 82 and 83 of the Representation of People's Act ?

2 Whether the necessary particulars - Affirmative mentioned in Section 83 (a) and (b) are mentioned in the petition and if not what is its effect ?

3 Whether the petitioner proves that he - Negative had taken steps and he had removed the objections recorded by the Returning Officer on the nomination form of the petitioner viz. Form No. 26 ?

4 Whether the petitioner proves that on - Negative

Election Petition No. 4/2014

27/09/2014 the Returning Officer had observed and had held that the discrepancies in the nomination form of the petitioner were removed ?

5 Whether the petitioner proves that the - Negative Returning Officer committed error in holding that Form No. 26 of the petitioner was incomplete and rejection of his nomination paper was wrong and illegal ?

6 Whether on the ground of improper - Negative rejection of nomination of petitioner in view of provision of Section 100(1)(c) of the Representation of People's Act, the election is liable to be set aside, liable to be declared as void ?

7 Whether respondent No. 1 is entitled to - Does not compensatory costs ? survive.

REASONS

7) The petitioner has given his own evidence and he has

examined RO - Manjusha Mutha.

8) Before framing of issues, applications were filed in the

present proceeding and other two proceedings by RC under the

provisions of Order VII, Rule 11 of Civil Procedure Code (hereinafter

referred to as 'CPC' for short). While deciding those applications, this

Court had considered the pleadings in the petitions and the

provisions of sections 81 to 83 of Representation of People Act,

1951. This Court had rejected the applications and the order was

taken to Supreme Court for challenging it by RC. The Hon'ble Apex

Election Petition No. 4/2014

Court has dismissed that proceeding filed by the RC.

Issue Nos. 1 and 2 :-

9) These issues involve compliance of provisions of sections

81 to 83 of the Act. This Court while deciding the applications filed

under Order VII, Rule 11 of CPC had an occasion to consider the

requirements of provisions of sections 81 and 82. This Court has

held that in view of the grounds given in section 100 (c)(d)(i) of the

Act, which are mentioned in the present petition, the objections of

absence of ground was not tenable. Some observations with regard

to the necessary particulars were also made to reject the contention

that necessary particulars were not there in the petition. Now, the

issues are framed on the basis of rival pleadings. The pleadings

disclose cause of action and the particulars which can be called as

'material facts' are there in the pleadings. They are already quoted.

For the purpose of provisions of Order VI, Rule 2 and Rule 9, these

particulars are sufficient and these particulars do give RC the

reasonable opportunity to defend the charge/allegations. In view of

the nature of charge levelled and the grounds relied upon, this Court

has no hesitation to observe again in the present proceedings that

the 'material facts' are there in the petitions.

10) The petitioner is claiming that his nomination form was

Election Petition No. 4/2014

wrongfully rejected. Due to these circumstances, it cannot be said

that there are no material particulars in the petition. Thus, there are

triable issues and the petition cannot be dismissed on the count of

non compliance of provisions of sections 81 to 83 of the Act. Thus,

issue No. 1 is answered in negative and issue No. 2 is answered in

affirmative, as there is compliance and on that ground the petition

cannot be dismissed.

Issue Nos. 3 to 7 :-

11) It is admitted by the petitioner in his substantive

evidence that discrepancies were pointed out by RO, which was in

respect of form No. 26. At Exh. 31, there is check list showing that

the discrepancies were pointed out to him. He has given evidence

that on 27.9.2014 he filed fresh affidavit in Form No. 26 and on that

RO made endorsement that it was filed and so, the discrepancies

were removed.

12) The nomination form was filed by petitioner as

independent candidate. He had given particulars that he was having

cash in hand as Rs.20,000/-, but he had not given particulars like his

accounts in any bank, which may be current account, saving account

or fixed deposit. He had shown is property as motorcycle bearing No.

MH-21/6092, having value of Rs.25,000/-. He had informed that he

Election Petition No. 4/2014

had no immovable property at any place. He had informed that he

had completed B.Com. degree and he is B.P.Ed., but the names of

the institution from where he received education and the years of

passing was not mentioned. He had informed that he was married

and his wife was housewife. The total value of his movable property

as mentioned above was Rs.25,000/-. In the column of dependents

in Part I of Form No. 26, he had shown that he only was having PAN

number. The name of wife was not mentioned and nothing was

mentioned in respect of dependent Nos. 1, 2 and 3. In Part II, he

had mentioned the name of University as Dr. Babasaheb Ambedkar

Marathwada University, Aurangabad. In the check list handed over to

the petitioner, it was mentioned that page No. 11 was incomplete

and documents at Sr. Nos. 1 to 6 were not annexed. He was advised

to file fresh Form No. 26 before the time fixed for filing the

nomination form.

13) In the fresh form of affidavit filed as Form No. 26, he

gave similar information which was given in the previous Form No.

26.

14) In the substantive evidence, the petitioner has deposed

as per the aforesaid contentions made in the petition. In the cross

examination made by the learned counsel for RC, the petitioner has

Election Petition No. 4/2014

admitted that he is resident of House No. 16, Indira Nagar, Old

Jalna. He has admitted that this house was owned by his father and

his father is dead. He has tried to say that the house now stands in

the name of his mother. But the reason for the same is not given by

him. He is Muslim and as a son of previous owner, he has share and

so, he has vested interest in the property. This property was not

mentioned in Form No. 26 by him.

15) In the cross examination, the petitioner has admitted

that he has wife and son. His wife is one of the proposer. The name

of wife and son were not mentioned by him in Form No. 26. The

circumstance that he has son, one dependent, was also not

mentioned and that column was filled by using word "Nil".

16) In the cross examination, the petitioner has admitted

that on the date of nomination, he was doing part time job with one

newspaper. However, in the cross examination, he avoided to give

the name of that newspaper. He admitted that he is making income

from coaching classes and even his wife is making income from

coaching classes. He admits in cross examination that at the

relevant time, he was getting Rs.3,000/- p.m. by way of salary from

the owner of the newspaper. These circumstances were not

mentioned in Form No. 26 by the petitioner. In the cross

Election Petition No. 4/2014

examination, the petitioner has admitted that he has accounts in

various banks. He has admitted that he had accounts in Marathwada

Gramin Bank, Jalna Branch; Nagari Sahakari Ban, Beed, Jalna

Branch; Jalna People's Co-operative Bank, Jalna Mondha Branch and

Jalna Merchant Co-operative Bank. The petitioner had not supplied

information in respect of these accounts in Form No. 26. In the cross

examination, he has admitted that he had taken loan of Mahindra

Finance Company for purchasing two wheeler in the year 2007. Till

the date of deposition, some amount was due against that

transaction. But, this transaction was not mentioned by him in Form

No. 26.

17) Smt. Manjusha Mutha, RO is examined by the petitioner

as his witness. She has deposed in the cross examination that Part

III of Form No. 26, which was filed second time was also not

complete as the portion which was not applicable from B1 and B2

was not scored. She has given evidence that other discrepancies

which were mentioned in the check list and her version shows that

she had formed opinion that it was not complete information and

discrepancies pointed out by her were not removed.

18) The learned counsel for petitioner placed reliance on the

case reported as AIR 2011 MADRAS 195 [Vanathi Srinivasan

Election Petition No. 4/2014

Vs. Chief Electoral Officer, Chennai and Ors.]. In this case, the

nature of inquiry which can be done by RO at the time of scrutiny is

discussed and it is observed that the scrutiny should be summary in

nature. However, it is also observed that ultimately, it is the Court

where it is required to ascertain as to whether the form was

complete or it was invalid.

19) The learned counsel for RC placed reliance on the

observations made by the Apex Court in various cases with regard to

nature of information which must be supplied by candidate in view of

the provisions of section 33-A of the Act and the Rules made for

seeking such information. The cases include the landmark case

reported as 2002 CJ (SC) 1227 [Union of India Vs. Association

For Democratic Reforms] and the other cases, reported as 2003

CJ (SC) 792 [People's Union For Civil Liberties (Delhi) Vs.

Union of India], (2014) 14 SCC 162 [Kisan Shankar Kathore

Vs. Arun Dattatray Sawant and Orss], (2014) 14 SCC 189

[Resurgence India Vs. Election Commission of India and Anr.]

and (2017) 2 SCC 487 [Mairembam Prithviraj alias Prithviraj

Singh Vs. Pukhrem Sharatchandra Singh].

20) In the first case of Association for Democratic

Reforms cited supra, which is landmark case, a direction was given

Election Petition No. 4/2014

by the Hon'ble Apex Court to Election Commission to call information

in the form of affidavits on the assets, qualifications, involvement in

offences of the candidates for judging their suitability. Rights of the

electorals were considered by the Election Commission. In view of

the directions given by the Apex Court, the provision of section 33-A

was added in the Act. The second case of People's Union For Civil

Liberties need not be discussed in the present matters. In the case

of Kisan Kothore cited supra the aforesaid landmark decision was

referred by the Apex Court and observations are made that it would

depend upon facts and circumstances of the each case as to whether

the non disclosure of the information called by the Election

Commission would amount to material lapse or not. If the non

disclosure of material information as to his assets, and assets of

spouse is there, the order of setting aside the election can be made

as in view of the Article 19 (1) (a) of the Constitution of India voters

have right to know assets and liabilities of contesting candidates.

The Apex Court has discussed the guidelines of 2006, and also the

provisions of sections 33 to 36 of the Act and section 100(1)(d) (i)

(iv) and section 116-A of the Act for making these observations. It is

made clear by the Apex Court that at the stage of scrutiny of the

nomination itself, the RO can reject the nomination on any of the

grounds stated in section 36 (2) of the Act and likewise nomination

can be rejected where blanks are left in the affidavit (Form No. 26)

Election Petition No. 4/2014

by the candidate. The Apex Court has, however, expressed that the

RO, at the stage of scrutiny of nominations, may not be able to

conduct detailed examination on objections as to misinformation or

suppression of material information in nomination and it is not

permitted. It is observed that when election petition is filed, the

detailed inquiry on such objections can be made by High Court and it

can be determined whether nomination was properly accepted by

Returning Officer or it was case of improper acceptance. It is laid

down that the required information as per the format has to be given

by the candidate. Similar observations are made in the case of

Resurgence India cited supra.

21) In view of the observations made in the cases cited

supra, it becomes duty of RO to find out whether information

required is furnished, though the RO is not entitled to make detailed

inquiry at this stage. The observations show that the blank affidavit

renders the affidavit nugatory. If blanks are left, that gives power to

RO to reject the nomination itself as such omission, blanks will make

it impossible for RO to exercise powers given under the Act.

However, at that time, if the RO is satisfied that the necessary

information as required by the aforesaid provision is supplied, he

may not reject the nomination.

Election Petition No. 4/2014

22) If the aforesaid position of law is kept in mind and this

law is applied to the present matter, it can be said that even after

pointing out all the discrepancies by RO, the petitioner had not

removed discrepancies and so, the RO was entitled to take proper

decision due to aforesaid things. Further, now the matter is before

this Court. This Court has considered the provisions of law with

regard to nature of information which needs to be supplied by the

candidates and this Court holds that the petitioner had not supplied

the necessary information and so, his form could not have been

treated as complete form in all respect. Thus, the form was not

complying with the necessary requirements of law and the rejection

of nomination was proper. This Court holds that it is not possible to

interfere in the decision given by RO against the present petitioner

and so, issue Nos. 3 to 6 are answered in negative and issue No. 7 is

answered as does not survive. In the result, following order is made.

                                  ORDER

(I)             The petition is dismissed.

(II)            The costs shall be cost in cause.


                                           [T.V. NALAWADE, J.]
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