Jayshree Balasaheb Athre vs The Additional Commissioner ...
2021 Latest Caselaw 7033 Bom

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   IN THE HIGH COURT OF JUDICATURE OF BOMBAY
              BENCH AT AURANGABAD

                WRIT PETITION NO.3639 OF 2020

 Rohini Balasaheb Lawande                           PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others           RESPONDENTS

                            WITH
                WRIT PETITION NO.3640 OF 2020

 Tarabai Vikram Athre                              PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others           RESPONDENTS

                            WITH
                WRIT PETITION NO.3641 OF 2020

 Bhamabai Kanifnath Lawande                         PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others           RESPONDENTS

                            WITH
                WRIT PETITION NO.3642 OF 2020

 Suvarna Ravindra Athre                            PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others          RESPONDENTS




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                            WITH
                WRIT PETITION NO.3643 OF 2020

 Jayshree Balasaheb Athre                         PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others         RESPONDENTS

                            WITH
                WRIT PETITION NO.3644 OF 2020

 Sunita Krushna Salve                             PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others         RESPONDENTS

                            WITH
                WRIT PETITION NO.3645 OF 2020

 Narayan Jaganath Athre                           PETITIONER

          VERSUS

 The Additional Commissioner,
 Nashik Division, Nashik and Others         RESPONDENTS

                               .....

Mr. Jiwan J. Patil h/f Mr. R. S. Kasar, Advocate for the petitioners

Mr. S. K. Tambe, AGP for respondent - State

Mr. A. B. Kadethankar, Advocate for Maharashtra State Election Commission

.....

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[CORAM : S. V. GANGAPURWALA & SUNIL P. DESHMUKH, JJ.]

RESERVED ON : 5th MARCH, 2021 PRONOUNCED ON : 4th MAY, 2021

ORAL ORDER (PER SUNIL P. DESHMUKH, J.)

. The reference comes before us pursuant to judgment

and order dated 6th March, 2020 passed by learned single

judge in a group of writ petitions bearing No. 3639 of 2020

and other companion matters.

2. Learned single judge, hearing writ petition No. 3639 of

2020 and others, had found that the issue raised in the

matters is as to whether a candidate elected unopposed is

required to tender account of election expenses, and that

petitioners rely on Dipmala w/o Ravindra Chachane V/s.

Additional Commissioner, Nagpur, 2020 (1) Mh.L.J. 900 to

contend that a candidate elected unopposed is not required

to campaign for contesting election and, as such, does not

incur election expenses.

3. Case submitted before the learned single Judge on

behalf of the State had been that in Dipmala's case (supra),

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section 77 of the Representation of People Act, 1951 which

mandates a candidate to keep account of all the

expenditure incurred in connection with election, from the

stage of nomination to the date of declaration of result as

well as order dated 15th October, 2016 issued by the

Maharashtra State Election Commission with regard to

submission of expenses in election to the Parliament,

Legislative assembly and local bodies had not been referred

to or cited. The Resolution refers to, inter alia, that

expenditure incurred even for tendering nomination form

would be an election expenditure.

In said group of petitions viz; W. P. No.3639 of 2020 &

others, order of the State election commission dated 7 th

February, 1995 was referred to whereunder a candidate

was supposed to maintain an abstract of accounts of

expenditure including amount spent on the items specifed

in proforma in Annexure 1 as election expenses which

contains thirty one heads, inter alia, cost of nomination

form, expenditure on security deposit, purchase of copies of

electoral rolls, etc. Information according to Annexure 1 was

required to be submitted by a candidate within thirty days

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of declaration of election result with the election ofcer, to

be accompanied by afdavit on oath. The candidate was

also required to maintain day to day accounts of

expenditure and submit the same to returning ofcer on

following day by 2.00 p.m.

4. It had been considered by the learned judge that in

"Laxmibai V/s The Collector, Nanded and Others" the

Supreme Court in its decision dated 14 th February, 2020

had concluded that section 14B of the Maharashtra Village

Panchayat Act gives discretion to the district collector

whether proper and just reasons have been given by the

candidate for failure to tender account of election

expenses.

5. It had further been found by him that in "Abhishek

Vinod Patil V/s The Divisional Commissioner and Another"

Writ Petition No. 11477 of 2018, a division bench at

Aurangabad on 27th February, 2020 had considered that

delay of two months in tendering election accounts entails

disqualifcation.

6. It is observed by the learned judge that order dated

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15.10.2016 of the State Election Commission, has been

issued with a view to eradicate corrupt and evil practices

and to eliminate money power imposing limitations on

election expenditure by a candidate, obligating

maintenance of its accounts including the

books/bills/vouchers etc. and to tender the same to

competent authority. Analyzing the order, the learned

judge considered that accounts of expenditure on various

heads are to be maintained by a person (observing that it

is not restricted to an elected candidate) including

expenses incurred over fling nomination forms (as some

forms are likely to be rejected) bearing in mind that trend,

of late had been, candidates submit nominations with

fanfare, processions, road-show etc. involving lot of

expenditure. He noticed that provisions under the order of

State Election Commission do not make any distinction

between a single candidature for a post and two or more

candidates vying for the same post in election fray and as

such starting point of expenditure would be from

nomination form ending with declaration of election result.

7. He went on to observe that with a view to put curbs

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on increasing use of money (economic) power having

pernicious efect on society at large, reducing election

process to a mere farce, the Maharashtra State Election

Commission had thought it appropriate to issue an order on

07-02-1995 exercising powers conferred upon it under

various statutory enactments, in the interest of purity of

elections to local democratic authorities, in free, fair and

efcient way, putting limit on expenditure. The learned

judge found that, going by clauses of Government

Resolution of 1995 a candidate has to account for entire

expenses incurred by him on the election which is without

qualifcation as to whether there was contest in the

election or the candidate was elected unopposed.

8. It was considered by the learned judge in the order of

reference, paragraphs 7, 8 and 9 of judgment in the case of

"Dipmala w/o Ravindra Chachane V/s Additional

Commissioner, Nagpur, 2020 (1) Mh.L.J. 900 , give an

indication of that for a particular post only if there are two

or more candidates, it would amount to contest and

candidates incurring expenditure in the contest are only

obliged to tender their accounts.

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9. As the order dated 07.02.1995 issued by the State

Election Commission as well had not been brought to the

notice of the court in the case of Dipmala (supra) as is the

case in respect of order of the State Election Commission

dated 15.07.2016, he was as such digressed in

appreciating the controversy. He, thus, considered it

appropriate that a larger bench would resolve the issue.

10. While in said group of writ petitions, the learned

single judge had deemed it appropriate, in the given facts

and circumstances, limiting operation of order of the

district collector to the period of the term of election and,

as such, order of the district collector had been modifed

making the same to be operative only till the elections,

which were to take place in August/September, 2020,

enabling the petitioners therein to contest

ongoing/forthcoming elections and petitions were disposed

of.

11. Albeit, the learned single judge considered,

presumably situation has arisen to frame following question

for reference;

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"Whether a candidate elected unopposed, is required to tender his accounts of election expenditure under Section 14B (1) of the Maharashtra Village Panchayat Act, Section 16 (1- D) of the Maharashtra Municipalities Nagar Panchayats and Townships Act 1965 and section 15B (1) under the Maharashtra Zilla Parishad and Panchayat Samities Act, 1961, in view of the order dated 07.02.1995 and the Government Resolution dated 15.10.2016? "

12. Learned advocate Mr. Jiwan Patil for the petitioners

submits that in the recent past, perceptibly, lot of money is

being expended by candidates over elections mal-utilizing

value of money to sway voters in their favour. In order to

prevent and deter candidates from mal/mis-utilization of

money, provisions have been introduced and incorporated

in various statutes viz. Section 14B(1) in Maharashtra

Village Panchayat Act and the ones referred to in the

question framed for reference. He draws our attention to

that, provisions of section (14-B) of the Maharashtra Village

Panchayat Act, are similar to the provisions from other

enactments in the referral.

13. Mr. Patil submits that, however, non furnishing of

accounts within time, would not in all cases entail

disqualifcation. Relevant facts would be required to be

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necessarily taken into account and mechanical approach

has to be eschewed. Discretion invested in the authority has

been conferred with a view not to interrupt the election of

returned candidates, but with a view to see that there is

sanctity to the same. The vested discretion is to be

exercised as far as possible to maintain election of a person

who has been democratically elected.

14. He goes on to submit that, however, in many a case,

the candidate goes elected without any contest, unopposed,

eliminating expenses required over election contest and in

such a clear/obvious case, non submissions of accounts

while there are no election expenses worth the name, non

compliance of procedure, may have to be appropriately

construed and constructed without disturbing election of a

person who has been democratically elected.

15. In support of his case, he places heavy reliance on

decision in Dipmala's case (supra) as well as on the decision

in the case of "Sahebrao Dashrathrao Patole V/s State of

Maharashtra and Others", 2010 (5) Mh.L.J. 462 . He submits

that the Supreme Court in the case of "L. R. Shivarama

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Gowda and Others V/s T. M. Chandrashekar (Dead) by LRs

and Others" (1999) 1 SCC 666 has considered that failure to

maintain true and correct accounts by itself does not

amount to corrupt practice of incurring or authorizing excess

expenditure justifying setting aside the election.

16. Learned counsel for the State, Mr. S. K. Tambe

reiterates the submissions as were advanced during hearing

of the group of writ petitions and requests a proper view be

taken to prevent the elections from being afected/infected

by economic malady.

17. Mr. Ajit Kadethankar, the counsel for the State Election

Commission has participated in the hearing providing

valuable assistance. He has tendered a compilation of

relevant papers/documents prefaced with notes on historical

background of election processes and developments taking

place chronologically including legal ones. He has taken us

through various orders passed by the State Election

Commission from time to time viz; the orders dated

07.02.1995 and 15.10.2016 highlighting their features and

has pointed out relevant aspects and the underlying

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purpose and purport.

18. In the present case, when the question has been posed

as referred to above earlier, the provisions would be

required to be referred to and while the provisions are

verbatim the same save duration of disqualifcation, it may

be useful to reproduce the provision from the Maharashtra

Village Panchayat Act, as the reference primarily originates

from matters under the same, which is as under;

" 14B. Disqualifiatiio by State Eleitiio Cimmissiio - (1) If the State Election Commission is satisfed that a person,-

(a) has failed to lodge an account of election expenses within the time and in the manner required by the State Election Commission, and

(b) has no good reason or justifcation for such failure, the State Election Commission may, by an order published in the ofcial gazette, declare him to be disqualifed and such person shall be disqualifed for being a member of panchayat or for contesting an election for being a member for a period of fve years from the date of this order (2) The State Election Commission may, for reasons to be recorded, remove any disqualifcation under sub-section (1) or reduce the period of any such disqualifcation. "

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19. Statutory provisions are in pari materia in all the

enactments, empowering the State election commission to

disqualify "a person" for failure to submit election expenses

within the timeline and in the manner regulating the same,

for want of good or justifable reasons. The provisions are

aimed at fair, pure and transparent election process in

civilised democratic society.

20. The provisions show that disqualifcation would be

incurred for failure to lodge account of election expenses

within time, which has no good reason or justifcation.

21. Going by the statutory provisions, the term

"election expenses" would enter the center, as to what

would constitute the same and what are its implications and

connotations.

22. Election Commission has power of superintendence,

has control over afairs concerning elections and is

empowered to issue directions. The provision empowers the

state election commission to legislate on the issues

concerning elections expenses. In the State of Maharashtra,

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the State election commission after its establishment had

for the frst time in 1994, issued mandate requiring

candidates to submit election expenses within a timeline.

The same went on developing and improving from time to

time.

23. Regulations have been introduced and brought in by

the State Election Commission issuing orders with a view to

have and maintain purity in elections, have check and

control over fnancial afairs and transactions of the

candidates and political parties, during elections as the

same is essential, including putting limit/rider on quantum

of election expenses, requiring furnishing of details of

election expenses by the candidates and to oblige its

observance and legislation provides for consequences on its

non compliance.

24. Money, its power and infuence have strong propensity

to subserve the cause of privileged class putting them in

distinctly advantageous position. It appears that provisions

have emergence in unethical, unlawful and corrupt use of

money to infuence, entice, induce people rather corrupting

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their conscience and/or may be a case to take disadvantage

of poor condition of people forcing them to surrender their

conscience and obtain votes. The money and with its aid

the means employed had been leading to unlawful

practices, reversely afecting underlying object of

democratic governance of polity.

25. The regulatory provisions and measures work to keep

the candidates in check, control and restrict their unbridled

tendencies, desires and ambitions and puts on guard and

warns them not to drift to unethical means to have

themselves elected. This would give preference to persons

who have potential for doing greater good of large number

of people on their own rather than get elected by corrupt

means using money and economic tools, which have

concomitant propensity to have recoupment of the

expenses incurred by indulging into further unethical ways

of functioning and to hoard money, wealth, to preserve

their positions, to get elected and/or re-elected on the

positions of power meant for public good, with selfsh

motives, objects creating sort of fefdoms which have latent

potential at the core in the process to create

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provinces/empires losing out on the purpose of election

which is incisively subversive to the object and purpose of

democracy rather does dis-service to the process and

object.

26. To efectively monitor election expenses, there have

been orders issued by the State Election Commission from

time to time improving and developing mandatory

requirements.

27. Orders had been issued in 2011 putting limit on the

election expenses. An order dated 3 rd August, 2016 had

been issued by Maharashtra State Election Commission

superseding all the earlier orders. Same has been further

elaborated issuing orders subsequently about time and

manner to lodge election expenses, forms of afdavits and

vouchers to be lodged in respect of the same.

28. Order dated 15th October, 2016, inter alia, provides

time and manner in which the election expenses are to be

furnished and prescribes Form No. 2 under its schedule,

wherein it includes among others, expenses on nomination

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and further refers to fee of nomination, earnest amount,

expenses over campaigning ofces, campaigning grounds,

vehicles, candidates own vehicles, ofce vehicles and

vehicles provided to workers, etc. Clauses thereunder

prescribe limit on the election expenditure by candidate.

The orders are enforceable.

29. Learned single judge deciding Dipmala's case (supra),

had observed to the efect that while petitioners therein,

were the only validly nominated candidates in the election

to be members of Gram Panchayat were elected unopposed,

further election process was not required to be undertaken.

Since there was no contest in election, petitioners were not

required to canvass and expend over election. In the facts

of the case, indication had been, there were good reasons

and justifcation for not lodging account of election

expenses for the purposes of section 14-B and good enough

for non-insistence on submission of election expenses. While

such a reason had been advanced in response to the show

cause notice, the same had not received its due, which was

a case worth consideration, having regard to clause "(a)" of

sub section (1) section 14B of the Maharashtra Village

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Panchayat Act.

30. In Dipmala's case (supra) it would emerge that neither

the order of the election commission dated 15 th October,

2016 showing what would comprise elections expenses had

been addressed to at all nor provisions of the

Representation of People Act were adverted to and brought

to the notice of the court as submitted on behalf of the

State nor earlier order of the State Election Commission

dated 07.02.1995 had been pointed out. The matter was

viewed, it appears, from the facts which were emphasized,

were about expenses post validation of nomination were

not required, as candidates were unopposed and as such no

occasion for a contest. The matter, discernibly, appears to

have been pressed, addressed and contested, without

reference to and/or oblivious of the orders issued by the

State Election Commission and relevant provisions and

aspects. The facts emphasized, had been appreciated in the

matter, in the given circumstances unwary of relevant

orders issued by the State Election Commission. There is no

frm much less pronounced laying down of any ratio that in

all the cases of unopposed election and/or contest free

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elections, account of elections expenses would not be

required to be furnished at all.

31. Nomination fee, earnest money, etc. all form part of

election expenses, as would emanate from the order issued

by the State Election Commission in 2016. Election

schedule Form No. 2 shows total election expenses

comprise, inter-alia, spendings as referred to thereunder

including the ones referred to above. All pre-arrangements

made for election by the candidates even before fling

nomination, over the items as referred to in form No. 2 may

also be relevant aspect.

32. Stages of election can be seen, generally begin for

candidates, with purchasing nomination form, its

submission and its validation by the returning ofcer and/or

even with purchase of voters' list before nomination. There

is lot of time gap between submission of nomination,

scrutiny and validation. It would not be out of place to

consider that as referred to by the learned single judge

referring the matter to larger bench, recent trend of

candidates has been to declare and publicize their

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candidature with much fanfare, submitting nomination

forms by procession, with bands, road-show, putting cut-

outs, advertisements, celebrating the same etc. even

before submission, scrutiny and validation of their

nomination. Naturally, lot of expenditure is involved in the

same. On many occasions, candidates have been indulging

into fling multiple nomination forms with a view to see that

their candidature is not blocked / debarred / excluded /

sidelined or held up on account of defect/defciency in a

form and at least one of the nomination forms would make

them survive to stand in the fray. With such approach,

preparations, candidates in elections on many occasions

make substantial arrangements for campaigning ofces,

grounds, advertising, payments to workers, securing voters'

lists etc, even before the date of fnalization of nomination

which indeed involves expenditure.

33. It would not be that expenses for election would be

only when there would be a contest in the elections. It,

thus, cannot be said in all the cases that, there would be no

election expenses in contest free or unopposed elections

and candidates getting elected unopposed, would stand

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exempted from tendering election expenses.

34. In view of aforesaid, we deem it appropriate to

afrmatively regard the question posed. The question

referred to above is answered accordingly. Answer,

however, does not purport to afect in any way and/or to do

away with exercise of power, discretion with the authorities

under the provisions referred to.

(SUNIL P. DESHMUKH, J.) (S. V. GANGAPURWALA, J.)

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