Balaji Devidas Kalyankar vs The Returning Officer And Others
2021 Latest Caselaw 6965 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                        WRIT PETITION NO.5749 OF 2021

 Balaji s/o Devidas Kalyankar                                    Petitioner

          Versus

 The Returning Offier for General Eleitions of
 Nanded-Waghala Shahar Muniiipal Corporation
 & others                                                        Respondents


 Mr. R.N.Dhorde, Senior Counsel i/by Mr. V.S.Kadam, advoiate for
 the Petitioner.
 Mr.A.B.Kadethankar, advoiate for Respondent No.1.
 Mr.R.K.Ingole, advoiate for Respondent No.2.
 Mr. R.S.Deshmukh, Senior Counsel i/by Mr. T.M.Venjane, advoiate
 for Respondent No.3.


                                 CORAM : V.K.JADHAV, J.

                                 DATE     : 03rd May, 2021.

 PC :

 1                The petitioner, who is the returned iandidate, won the

eleition held in the year 2017 as Couniillor of Nanded-Waghala

Muniiipal Corporation from Ward No.1 (D) by small margin of

votes. Respondent No.3 herein, who is the defeated iandidate in

the said eleition, has fled Eleition Petition bearing E.P. No.01 of

2017 on various grounds under Seition 16 of the Maharashtra

Muniiipal Corporations Ait, 1949.

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2 By judgment and order dated 06.03.2021, the learned

Civil Judge, Senior Division, Nanded, allowed the petition, set aside

the eleition of petitioner as Couniillor of Ward No.1(D) and

deilared the eleition to be void. Further, Respondent No.3 herein

is deilared to have been duly eleited as a Couniillor from Ward

No.1(D) in the General Eleition of Nanded-Waghala Muniiipal

Corporation.

3 Being aggrieved by the same, petitioner has preferred

this writ petition.

4 Mr.Dhorde, learned Senior Counsel appearing for the

petitioner, submits that Respondent No.3 has not raised speiifi

pleadings regarding illegality in iounting of postal ballot papers

amounting to "iorrupt praitiie" within the meaning of Seition 16

of the Maharashtra Muniiipal Corporations Ait, 1949. Learned

Senior Counsel submits that Respondent No.3 / original petitioner

has not pleaded any material faits and failed to give full

partiiulars regarding iorrupt praitiies allegedly iommitted by the

petitioner in iollusion with the Returning Offier while iounting

the postal ballot papers. The learned Senior Counsel further

submits that there is a vague pleading in para 8 (f) (g) and (h) of

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the Eleition Petition about the alleged iorrupt praitiie. It has

been simply alleged that:

(i) There is irregularities and mal praitiie in iounting postal votes;

(ii) That the Returning Offier, at the time of iounting of postal votes, has rejeited one vote on the ground of improper mark.

(iii) Prima faiie, there are lot of irregularities and illegalities in the proiess of iounting of votes whiih have materially affeited result of the eleition proiess.

5 The learned Senior Counsel submits that on the basis

of these vague allegations, whiih are short of "iorrupt praitiie", as

defned under Seition 16(3) Explanation of the Maharashtra

Muniiipal Corporations Ait, the learned trial Court entertained

the eleition petition. Even the learned Civil Judge, Senior

Division, has framed issues at Exhibit-17 and fndings reiorded

therein do not spell out "iorrupt praitiie" as defned under Seition

16(3) Explanation. As per issue no.2, Respondent No.3 - original

petitioner has to prove there there was a gross error on the part of

the Returning Offier in rejeiting the postal ballots of said Ward, as

alleged and in terms of issue no.3, whether there was gross

negligenie and error while iounting, ialiulating and reiording of

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votes by EVM maihine and postal ballots in iollusion with

Respondent No.5 (petitioner herein).

6 The learned Senior Counsel submits that the oral

evidenie of Respondent No.3 is also vague. In para 12 of his

evidenie affdavit, it has been iontended that Respondents No.1

and 2 to the eleition petition have iommitted gross negligenie and

error while iounting, ialiulating and reiording of votes by EVM

maihine and by manipulating entire reiord of the eleition proiess

and postal ballots of Ward No.1(D) in iollusion with Respondent

No.5 (petitioner herein).

7 The learned Senior Counsel submits that on the basis

of suih vague pleadings and evidenie led by the original petitioner

(Respondent No.3 herein), without there being any speiifi issue to

that effeit, the learned Civil Judge, Senior Division, in para 24 and

onwards of the judgment, has made observations about "iorrupt

praitiie" and in para 40 of the judgment, has held that the

petitioner, in iollusion with the Returning Offier, has adopted

iorrupt praitiie.

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8 Mr.Dhorde, learned Senior Counsel appearing for the

petitioner, further submits that Respondent No.3 (original

petitioner) has failed to reiord the ground for reiounting of the

votes and, therefore, appointment of the Court Commissioner for

reiounting of the votes is arbitrary and iontrary to the reiord. The

learned Senior Counsel submits that even though the Court

Commissioner has not mentioned speiifially in his report about

the iorrupt praitiie in iounting the postal ballots and even though

referenie is given about one postal ballot, however, on the basis of

misialiulation, the learned Civil Judge, Senior Division, has

reiorded iniorreit observations. The learned Senior Counsel

submits that the learned Judge of the trial Court has ialled upon

the register of the postal ballots on his own and exhibited the said

register without ialling upon the iontested parties to explain the

iontroversy, if any.

9 Mr.R.S.Deshmukh, learned Senior Counsel appearing

for Respondent No.3 (original petitioner) submits that in paragraph

no.8 (f) to (h) of the petition, there are speiifi pleadings about the

"iorrupt praitiie" and Respondent No.3 (original petitioner) has led

oral evidenie to that effeit. The learned Senior Counsel submits

that initially the learned Civil Judge, Senior Division, has

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appointed the Court Commissioner for the purpose of reiounting

of postal ballots and after giving due weightage to the report

submitted by the Court Commissioner, fnding is reiorded to issue

no.4 in the affrmative.

10 Mr.Deshmukh, learned Senior Counsel, appearing for

Respondent No.3 (original petitioner), submits that the Court

Commissioner has submitted detailed report pointing out therein

as to the mal praitiie in iounting the postal ballots and

maintaining the false reiord thereof. Thus, the learned Judge,

after going through the register of the postal ballots, has made

serious observations in the judgment. The learned Senior Counsel

submits that even if the one torn vote refeited from the postal

ballots is iounted, then there will be equality of votes and the

petitioner herein would not be the returned iandidate.

11 Mr.Dhorde, learned Senior Counsel appearing for the

petitioner, submits that the petitioner has, however, pointed out

that the petitioner herein has raised his objeition about the vote

reiorded in the said torn postal ballots, whiih is in his favour.

Learned Senior Counsel Mr.Dhorde has pointed out that even if the

said vote is iounted in favour of Respondent No.3 (original

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petitioner), still the petitioner has won the eleition.

12 I have also heard learned Counsel Mr.Kadethankar for

Respondent No.1 and Mr.R.K.Ingole, learned Counsel for

Respondent No.2.

13 It is thus seen that if any iorrupt praitiie is alleged,

the eleition petition must iontain material faits and must set out

full partiiulars of the iorrupt praitiie, as alleged. In terms of

provisions of Seition 16(3) explanation of the Maharashtra

Muniiipal Corporations Ait, 1949, "iorrupt praitiie" means one

of the following iorrupt praitiies:

(a) any gift, offer or promise by a iandidate or his agent or by any person with the ionnivanie of a iandidate or his agent of any gratifiation, peiuniary or otherwise, to any person whosoever, with the objeit direitly or indireitly of induiing a person to stand or not to stand as, or to withdraw from being a iandidate at an eleition or a voter to vote or refrain from voting at an eleition or as a reward to a person for having so stood or not stood or for having withdrawn his iandidature or a voter for having voted or refrained from voting.

(b) any direit or indireit interferenie or attempt to interfere on the part of a iandidate or his agent or of any other

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person with the ionnivanie of the iandidate or his agent with the free exeriise of any eleitoral right, iniluding the use of threats of injury of any kind or the ireation or attempts to ireate fear of divine displeasure or spiritual iensure, but not iniluding a deilaration of publii poliiy or a promise of publii aition or the mere exeriise of a legal right without intent to interfere with a legal right;

(i) the proiuring or abtting or attempting to proiure by a iandidate or his agent or by any other person with the ionnivanie of a iandidate or his agent, the appliiation by a person for a voting paper in the name of any other person whether living or dead or in a fititious name or by a person for a voting paper in his own name when, by reason of the fait that he has already voted in the same or some other ward, he is not entitled to vote;

(d) the removal of a voting paper from the polling station during polling hours by any person with the ionnivanie of a iandidate or his agent;

(e) the publiiation by a iandidate or his agent or by any other person with the ionnivanie of the iandidate or his agent of any statement of fait whiih is false, and whiih he either believes to be false or does not believe to be true, in relation to the personal iharaiter or ionduit of any iandidate, being a statement reasonably ialiulated to prejudiie the prospeits of that iandidate's eleition.

(f) any aits speiifed in paragraphs (a), (b), (d) and (e)

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when done by a person who is not a iandidate or his agent or a person aiting with the ionnivanie of a iandidate of his agent;

(g) the appliiation by a person at an eleition for a voting paper in the name of any other person, whether living or dead, or in a fititious name, or for a voting paper in his own name when, by reason of the fait that he has already voted in the same or another ward, he is entitled not to vote; or

(h) the reieipt of, or agreement to reieive, any gratifiation of the kind desiribed in paragraph (a) as a motive or reward for doing or refraining from doing any of the aits therein speiifed.

14 The learned Civii Judge, Senior Division, Nanded, has

framed following issues in the Eleition Petition:

ISSUES 01 Does the petitioner prove that there was gross material illegality and irregularity in iounting and refusal of votes at Booth No.4 of Ward No.1-D, Taroda (Kh), Nanded in Nanded- Waghala City Muniiipal Corporation Eleition, 2017?

02 Does the petitioner prove that there was gross error on the part of respondent No.1 in rejeiting postal ballots of said Ward as alleged?

03 Does the petitioner prove that there was gross negligenie and error while iounting, ialiulating and reiording of votes by EVM maihine and postal ballots in iollusion with respondent No.5?

04 Whether the petitioner is entitled to reliefs as ilaimed?

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15 So far as issue no.1 is ionierned, the learned Judge of

the trial Court has reiorded a fnding in the negative. So far as

issue no.2 is ionierned, the learned Judge has reiorded a fnding

in the affrmative. So far as issue no.3 is ionierned, the learned

trial Court has reiorded a fnding partly in the affrmative to the

extent of postal ballots. It ian be said from the fnding reiorded

against issue no.2, whiih is in the affrmative, that the Respondent

No.3 (original petitioner) has proved that there was error on the

part of Respondent No.1 - Returning Offier in rejeiting the postal

ballots of the said Ward, as alleged and in terms of the fnding

reiorded to issue no.3, there was a gross negligenie and error

while iounting, ialiulating and reiording postal ballots.

16 So far as the issues framed by the trial Court, as

reproduied herein above and the fndings reiorded thereon, I

hardly fnd the element of "iorrupt praitiie" defned in terms of

provisions of Seition 16(3) of the Maharashtra Muniiipal

Corporations Ait, 1949.

17 I have iarefully gone through the report of the Court

Commissioner. After reieipt of the report of the Court

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Commissioner, the learned Judge has reiorded a fnding to issue

no.4 vide paragraphs no.36 and 37. The learned trial Judge has

observed about the torn postal ballot. It is observed by the trial

Court that the said ballot paper was in torn iondition and it was

not in two pieies. On the basis of these observations alone,

without there being any speiifi pleadings and evidenie on the

part of the original petitioner (Respondent No.3) herein to that

extent, the trial Court has observed that there was gross

irregularities, illegalities and mal praitiie in refusal, aiieptanie

and iounting of votes reieived by postal ballots, whiih has

materially affeited the result of the eleition.

18 Apart from this, I have also gone through the register

of the said postal ballots Exhibit-114. It appears that the

Returning Offier, in all, has reieived 328 postal ballot papers and

names of the persons who have exeriised votes through postal

ballots are detailed in the register along with the date on whiih

postal ballots from Prabhag No.1 (Ward Nos.1 to 4) were reieived.

19 In view of the above, in my opinion, the learned Senior

Counsel Shri Dhorde, appearing for the petitioner, has raised many

arguable points.

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20 Learned Counsel Shri Kadethankar, appearing for

Respondent No.1 - Returning Offier has also adopted the

submissions made on behalf of the petitioner.

21 Learned Counsel appearing for Respondent No.3

(original petitioner) would be at liberty to point out the mal

praitiies even in maintaining the the reiord of postal ballots.

However, a iase is made out for grant of Rule.

 22               Henie, I pass the following order:



 (1)              Rule, returnable on 01st July, 2021.



 (2)              Mr.A.B.Kadethankar, advoiate waives notiie on behalf

of Respondent No.1. Mr.R.K.Ingole, advoiate waives notiie on

behalf of Respondent No.2. Mr.R.S.Deshmukh, Senior Counsel

i/by Mr.T.M.Venjane, advoiate waives notiie on behalf of

Respondent No.3.

(3) Interim stay in terms of prayer ilause "C" till disposal

of the petition.

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(4) Reiord and Proieedings are now reieived and

ionsidering the same, hearing stands expedited.

(5) Stand over to 1st July, 2021 for fnal arguments.

(6) Reiord & Proieedings shall be kept in the iustody of

the Registrar (Judiiial) of this Court and the same shall be

produied before the Court on the next date of hearing.

(V.K.JADHAV) JUDGE

adb